It's Jurisdictional

"it's jurisdictional" will never rival "it's electric" (Marcia Griffith, 1976). But what a great song it might make.

A few months back, 1,500 months that is, the Florida Supreme Court explained the operation of Chapter 4528, enacted in 1897. Chamberlin v. Finley, 40 Fla. 91, 23 So. 559 (1898). The point of the law, and the Court's interpretation, is that there would be structure to appellate actions in Florida courts. The Court explained that "the entry of appeal is jurisdictional, and is absolutely indispensable." One cannot appeal a trial decision with silence or subtlety.

From that historical foundation, comes a parade of decisions in which various courts have explained the jurisdictional nature of the "notice of appeal."

Perhaps the first such explanation in the wide, wide, world of workers' compensation occurred a few days back, 28,600 days back that is, in City of Miami v. Saco, 24 So. 2d 115 (1945). There, the Court explained that workers' compensation is a statutory creation. The statute provides for adjudication by a state agency, and any entitlement to appeal the decision of such an agency "exists solely by virtue of the statutes creating and defining the powers of this state agency."

There is, in this, clarity. The answers to many questions, it seems, are there in the statute for anyone to read. Section 440.25(5)(a) notes that:

"Procedures with respect to appeals from orders of judges of compensation claims shall be governed by rules adopted by the Supreme Court. Such an order shall become final 30 days after mailing of copies of such order to the parties, unless appealed pursuant to such rules."

There are those who would read that and immediately believe that there is a stringent deadline of 30 days. The language seems reasonably certain and conclusory. That said, the history of Florida workers' compensation is littered with a multitude of appellate decisions that dodged, deflected, or ignored various deadlines imposed by the legislature. There are some who feel the appellate court's record on the subject of deadlines begs explanation. Others strive to explain those deflections academically with little success. 

Returning to Saco, however, the Florida Supreme Court noted that there was no "right of review or appeal by the courts" by any "constitutional right." Instead, "such right of review...is a statutory privilege." Thus, it "is subject to the limitations, conditions, and restrictions imposed by the statutes which define and create the privilege." 

That 30 days, at least under the parade of analyses, appears to be "jurisdictional." The parade includes such intriguing analyses as Thompson v. Park Place of Venice, Inc., 888 So. 2d 47 (Fla. 1st DCA 2003) and Troche v. BJ's Wholesale Club, Inc., 954 So. 2d 685 (Fla. 1st DCA 2007). These each illustrate and explain the 30 days. Troche is particularly good reading.

 

Some might argue that how absolute the 30 days is depends on the appellate court panel that is charged with a particular review or appeal. Certainly, a panel might return to the statute and defer on those prior court decisions. But, at least for the present, that 30-day deadline seems singularly important and likely absolute. When a "final adjudication" is made, a "final" order is entered, an aggrieved party may seek review. But, that must be instigated within 30 days of the order being sent. 

This is a matter of statutory law (above), but for good measure, the Supreme Court has provided Rules of Appellate Procedure, which echo the "30 days," in addressing "commencement":

"Jurisdiction of the court shall be invoked by filing a notice of appeal with the lower tribunal within 30 days of the date the lower tribunal sends to the parties the order to be reviewed either by mail or by electronic means approved by the deputy chief judge, which date shall be the date of rendition." Rule of Appellate Procedure 9.180(b)(3).

One might quibble with whether the Rule has any necessity or meaning in a statutory system. But, as the two formulae are seemingly congruent, 30 days is the apparent deadline. That is from the date the trial judge mails or transmits the order. It matters not when the parties receive it. It matters only when it was sent. 

Of interest, though, the rule is not afforded strict enforcement in other regards. The Court's rule says "with the lower tribunal," but the appellate court has concluded that language is meaningless and a notice is effective whether filed with the lower tribunal or with the appellate court directly. Dayan v. H.I. Dev./Holiday Inn, 710 So. 2d 187, 188 (Fla. 1st DCA 1998). Part of the rule is absolute, other parts are relative.

The time for a party to consider the efficacy of an appeal is immediately. The deadline is short. In many instances parties might be well-served to discuss and consider appellate process in a "what if" approach even before the trial order is entered. This is particularly true if the party will be paying the costs of a record, appellate filing costs, and attorney fees. Appeals can be expensive. That said, when an appeal has not been contemplated before trial, it should be an immediate discussion after. Time is short, and 30 days is not as extensive as it might sound.

The good news is that a notice of appeal can now be filed without printers, envelopes, post offices, trucks, and such. The notice can be electronically filed. The filing fee can be easily transferred electronically. The process is simpler than it was twenty years ago. Of note here, the filing fee is not. Williams v. State, 324 So. 2d 74, 77 (Fla. 1975). Perhaps that is because there is no fee mentioned in the statute? Or because a party might instead seek relief from that fee on the grounds of indigency?

Despite this, we continue to see tardy notices of appeal. Some delay because a Motion for Rehearing was filed. Some confuse civil practice and procedure with the Chapter 60Q rules, which in 60Q6.122(3) provide:

(3) A motion for re-hearing does not toll the time within which an order becomes final or an appeal may be filed.

Thus, the clock is ticking. If the 30-day deadline looms, one cannot be distracted by a lingering Motion for Rehearing. And, if a motion for rehearing is denied, the time to file an appeal still runs from the mailing of the trial order that the judge entered (not from the denial of rehearing).

It may be particularly difficult to explain this to a client. The lawyer filing the notice of appeal has signaled, reasonably clearly, a significant belief of error by the trial tribunal. By doing so late, the lawyer has failed to protect the client's interest in having that error reviewed. Some would suggest that when the dismissal is received from the appellate court it is time to notify the malpractice carrier and client. 

Marcia Griffith might sing:

"You can't see it

It's jurisdictional!
You gotta feel it
It's jurisdictional!
Ooooh, it's shocking
It's jurisdictional!"

Potential Energy

The striking characteristic of the Worker’s Compensation community has persistently been involvement and engagement. I am, perhaps, spoiled by my long association with so many in the space. When I encounter lawyers and judges engaged in other practices, I am often struck by their expressions of both surprise and admiration regarding the close-knit community that is Worker’s Compensation. I sense it is widespread, but Florida is a significant example. 

In fairness, one might admit that as good as it is, it’s not what it once was. There has been some retreat from engagement, driven by technology and then SARS-CoV02. There is an increasingly pervasive portion of the practice that finds isolation and virtuality, are meritorious and preferable. Many of those are the younger, the "next," generation. As a persistent introvert, I must admit some admiration for their mindset.

But this market is notably gregarious. That was illustrated again recently in two regards.

The College of Worker’s Compensation lawyers gathered for their annual induction dinner in Chicago, Illinois. Despite the somewhat troubled nature of that municipality and its citizens, there were no safety issues I have heard of. The College is open to any lawyer practicing in worker’s compensation with significant involvement in Worker’s Compensation for two decades.

The class of 2024 included Floridians: Honorable Eric Grindal, Honorable Margaret Kerr, and Honorable Daniel Lewis. There are a great many of the Fellows from Florida. The influence of this community on the larger whole is apparent and understandable. 

The College also inducted a "Legend" in 2024. Alongside Theodore Roosevelt, Crystal Eastman, and Francis Perkins now stands a 17th-century pirate with a legacy of violence and mayhem (but, in fairness, he had a compensation system that shares characteristics with modern workers' compensation). That said, perhaps a pirate with no connection to America or to workers' compensation is not someone to be exalted and honored.

The College is approaching its 20th anniversary and has inducted hundreds of lawyers. That is worthy of note. Imagine a lawyer, just entering the worker’s compensation practice in the inaugural College year will soon be eligible for induction into the organization. That is a notable history. 

The College's purpose is an accolade and honor for its members. It unfortunately does little beyond hosting this annual dinner for new members. A handful of existing members will travel to those dinners, but with transportation, hotel, and the meal it is an expense of about $1,000. That is not for the masses and signals a somewhat elitist perspective. But, it is certainly an honor for Fellows to be recognized by their peers.

The College is an organization of great wealth in experience, gravitas, and personality. It has great potential, which may one day awaken to realize its destiny. There are many talented and knowledgeable fellows, significant financial resources, and ambition. But, for now, it is not what it could be. 

The Monday after, March 18, 2024, the students in the Pre-law Club of the Florida State University, Panama City campus, gathered for one of his periodic meetings. In 2022, Judge John Moneyham happened upon the idea of a pre-law club in an innocuous conversation with Community members otherwise engaged at FSU. There was an instant realization that students attend that college with an interest in pursuing a legal degree. Despite a vibrant Panama City, legal community, no thought had ever been given to such a group.

In this, kudos to Judge Moneyham for his effort, along with the pre-law faculty, and administration. The resulting pre-law club meets monthly to discuss member's interests, aspirations, and perceptions. Judge Mooneyham has been simply fantastic in his engagement and motivation of these young people. In a significant manner, this outreach is striving to raise awareness, instill motivation, and build appreciation for the workers' compensation practice.

The student group gathered Monday to hear from a Florida Supreme Court Justice. From the pictures I received, none wore formal attire. There was no 5-course meal. There was less glad-handing and more community. They spoke of the law, their plans, dreams, and futures. Their focus was broad, and their spirits admirable. Their desire to engage and be involved in doing, making, and growing is inspiring. 

The dichotomy is palpable. In one, there is self-congratulation and camaraderie, draped in pomp and buried in circumstance. The other has no budget and only the enthusiasm of youth as a resource. The communities are distinct. One is yesterday celebrating success, celebrating itself. The other is tomorrow, celebrating ambition, potential, ideals, and promise. One wonders what the ambitious and motivated might accomplish with the $100,000+ spent traveling to Chicago and attending the black-tie dinner (150 attendees, $750 for airfare, hotel, dinner, and even tuxedos - conservatively - $200,000 is more likely). 

How many young people might benefit from a scholarship, internship, or fellowship in workers' compensation? How many such benefits might be bestowed with $100,000? How many Fellows might visit a college campus, conference, or convention with such funding? How many of tomorrow's leaders might be reached with such funding? 

Each of these examples illustrates the potential for in-person engagement in the worker’s compensation space. Each helps us visualize that there are untapped opportunities for bridging that seemingly persistent gap in our modern-day worker’s compensation community. One (the College) is hundreds strong, financially wealthy, and extremely diverse (geographically, gender, and race. The pre-law club at Panama City is nascent, aspirational, and transient (all students soon move on to other professional pursuits).

Physicists discuss impacts using adjectives. They say "An object can store energy as the result of its position." In this way, such objects have "potential" energy that becomes actual when released. That can be an involved discussion, but imagine a bow with an arrow. The bow sitting on the ground has no "potential energy." When the string is pulled back, that "position" that has taken movement (your arm) to store the energy will be expressed sending the arrow forth (actual). 

The "position" is not geography but the actuality of posture. Energy is “potential“ when it is in some way stored, trapped, or inhibited. This is true with the drawn bow, and with items of significant gravity that are at an altitude. A boulder in your front yard may be visually appealing, but without Newton's help, it will merely sit there and be pretty. The "unbalanced force" that might move it is undefined.  

The energy can nonetheless be appreciated, if not necessarily readily observed. Given the right circumstances, and provided with a stimulus of some kind, potential energy can be converted into active energy. If the stimulus is something like gravity, then altitude (the magnitude) of force can be magnified. Push that boulder off the crest of the hill in your yard, and it might gain the momentum to destroy your mailbox. Push it from the top of Mt. Everest, and it might gain comrades on the trip down and destroy a village. 

Altitude matters. Magnitude matters. What will we do with our great power? Well, we could get together for a dinner.

The potential and process is illustrated in the two recent in-person gatherings. Each has potential energy to even the casual observer. Each may be looked to for impact and influence. Each could change its community or more. Perhaps that is harder for the little student group on the hill in the front yard, and so much easier for those boulders who already have great altitude, resources, and prestige. But, either could make an impact. 

Understanding that the worker’s compensation community is replete with similar potential energy examples, the question for you, is, what will you do to release it? Or, if action is not your forte, what might you do to support the storing and development of it? Will you encourage, mentor, write, speak, or sit in your corner and complain?

I will fly to South Florida next week. We have Meet and Greets scheduled in Miami and West Palm Beach. I will be at the Forum in April (Orlando). I will continue to take to the podcast, the blogosphere, and the stage to recognize those striving to make a difference. This community is broad and deep. The opportunity is there for the taking. Will I see you there?

Ubiquitous Cameras and Implications

I have posted many times regarding the ubiquity of surveillance cameras. Those devices are everywhere and more are being sold and installed every day. Some estimate that there are close to 100 million security cameras in the U.S. There are only 335 million of us here, and so the cameras are catching up. And, there are an estimated 310 million smartphone users in the U.S. That is a lot of cameras.

See Surveillance, Conflicting Rights, and Balance (May 2021).

For whatever reason, I recently found myself on Twitter and a video came up regarding an alleged incident that resulted in a popular video on another social media platform. The popular video involved a nice lady who had an upsetting experience at a business and she took to social media to complain of being assaulted, manhandled, and abused. Apparently, the video in which she describes these offenses in detail made an impression and generated sharing.

The business, however, had some of those surveillance cameras on their premises. Soon, apparently, the business published its own video. The theme was to run the complainant's original video and complaints next to the alleged real-time video of her departure from the business. To be clear, it is difficult to judge the authenticity of either side of the story. But, it is fair to say that what has been portrayed may present a very divergent "two sides to every story.")

You can view the side-by-side here: https://www.tiktok.com/@hubbardinnchicago/video/7345947161005133102

Or here: https://www.reddit.com/r/chicago/comments/1bes198/hubbard_inn_responds_to_tiktokers_allegation_of/

Some outlets have reported that "the accuser has shut down all of her socials and gone dark online," since that side-by-side was published. Others have questioned why the accuser has not refuted or contested the response video with the purported video evidence that may contradict her original accusations. One of the posters on Twitter has questioned, somewhat colorfully, whether something has gone wrong with our world?

Commenters also make allegations and accusations against the original poster. Some are strongly worded. Others note their interpretations of the videos, the outfits worn by those portrayed, and the absolute control that the business has over the video. Those are issues of credibility, authentication, and the weight afforded to evidence. All of those are litigator concerns in each and every context. Video is potentially helpful and yet potentially challenging. 

Believe it or not, I soon began seeing more video examples appear in my Twitter feed. Is it not amazing that these things seem to coincidentally come in groups? Or, is it possible that Twitter is studying me covertly and directing my attention next to things similar to what I viewed last? Preposterous, huh?

The next video that came up purports to depict a confrontation on a New York subway that ended with gunshots. The NY Times reported on the situation. And it is fair to say that is a developing investigation. The press expressed uncertainty as to whether criminal charges will result against either of the individuals. There seems to be some reluctance in the press regarding who is the aggressor and who is the victim.

However, believe it or not, there is purported video of the event. However, I noted this looks more like smart phone video. https://twitter.com/i/status/1768599451025756530.

It is likely that videos like this will be viewed and reviewed repeatedly in days to come. The natural question might be why the subway cars do not have security cameras. That is being considered also and NY News 1 reports that there are plans to significantly increase the 400 cameras currently on that train system (665 miles of track). The News 1 story says the planned cameras are a response to a "rise in assaults" that persists despite "upwards of over a thousand additional cops deployed in uniform each day in the New York City subway system." That is intriguing. The cost of 1,000 extra police seems significant and ongoing, but cameras are a challenge?

These stories remind us that cameras can be engaged in daily life. They may record us without our knowledge. They may reflect our recollections of events, or perhaps refute them. They seem omnipresent, and they are multiplying. There is every reason to believe that video may find its way into litigation, whether it supports someone's complaint against another or refutes recollections and explanations.

As to the initial video example, some will wonder if the business or employees might pursue defamation actions against the original poster. Or, if the "different outfits" are persuasive whether the original poster might file such a suit. The subway video may be relevant in determining criminal charges, or be involved in a civil suit by someone alleging injury. And as those situations are worked through, more cameras will be put into service. 

In 2015, among my early blogs, I noted Rockwell's perceptions, see Assume Everyone is Watching (September 2015). I would reiterate it here and suggest that knowledge of authentication, privacy rights, and digital record keeping may all be valid issues for study by attorneys. The litigation practice seems destined to continue its path into video relevance and prominence.

Artificial Extinction?

The news very recently reported regarding a United States State Department Commission study on artificial intelligence. The results reportedly include some quite dire predictions. Reading the report I was reminded of a quote from the 1980s classic Ghostbusters, discussing the safe use of their technology:

"Spengler: It would be bad.

Venkman: I'm fuzzy on the whole good/bad thing. What do you mean, "bad"?

Spengler: Try to imagine all life as you know it stopping instantaneously and every molecule in your body exploding at the speed of light.

Venkman: Right. That's bad. Okay. All right. Important safety tip. Thanks, Egon."

Ok, so this AI thing could be "bad." We got that part. 

I was fortunate, in my youth, to engage in some philosophical conversations with individuals of great intellect. One I recall, was fascinated and engaged by the demise of the dinosaurs. Left to his own devices, this individual’s thoughts and conversation would often turn to the theories of the great extinction. He enjoyed propounding his perspectives on “extinction events.“

One of his perceptions, often voiced, was the unpredictability of cataclysmic environmental events. He was a subscriber to the meteor theory of dinosaur extinction. I can recall him several times uttering the phrase “they never knew what hit them,“ and similar observations, such as "there’s no way they could’ve seen it coming.”

I recall, biting my tongue. All my petit brain could muster was, essentially, “Yeah dinosaurs didn't have telescopes." To me, the observation of unpredicted, or unprepared, seemed axiomatic and irrelevant there. Whether their demise was cataclysmic or evolutionary, they no more saw it coming than they mapped the dinosaur genome, built self-driving dino-vehicles, or put a dinosaur on the moon. That is flippant, and a bit sarcastic, apologies. That said, I see little relevance in discussing our future with reverence or reference to the demise of dinosaurs. The parallels escape me.

That said, there are some noted in the State Department report that believe the human race may be headed for a similarly cataclysmic "extinction" event. No, not a meteor, but an extinction nonetheless. The fears do not seem centered upon computers impersonating Tom Hanks, inappropriate, or malignant photographs (see Deep Fakes in Florida, March 2024), or even disproportionate, or discriminatory, censorship of viewpoints and perspectives (yes, there is some evidence that some platforms compress or exalt various viewpoints).

The significant fears in the State Department report are two-fold. First is the potential that miscreant humans will engage AI in a weapon "heist" form, and thus use the appropriated weapons in a manner that will disable and disrupt the very underpinnings of our societal existence. This is a hacker fear, and in fairness, there have been some intriguing instances in which miscreants used technology against those who created it. As I read the report, I wondered how this "theft of AI" threat is more potentially destructive than nuclear weapon theft?

The second seemingly popular threat is that artificial intelligence will become sentient, and, without the help of miscreants it will itself engage in destructive behavior. This might be through the intent of its designers, the inadvertence of programmers, or other accidents.

As I read, I wondered aloud: "Is this War Games (MGM 1983) or Terminator (Orion 1984)?"

Unfortunately, the human race seems inclined to sloth. Increasingly, the benefits and virtues of hard work dedication and focus have become punchlines rather than goals. Young people are increasingly drawn to the virtual world, with its great benefits, friendship proxies, and unfortunate risks. Societally, humans of the most ardent, independence and liberty seem repeatedly inclined to yield their inherent God-given rights (“endowed by their Creator”) to the government in exchange for security, or protection. They seem as eager to yield to social media for convenience, collectivity, and acceptance.

Why my mind is drawn toward Hollywood in these regards, I cannot explain. But, I wonder if we are creeping toward the ruined world portrayed in Wall-E (Pixar 2008). In that classic, the good folks have deteriorated into a codependent technology relationship that is clearly and humorously toxic. They persist in pointless lives serving computers that serve them. The humans had become obese, ignorant, and, frankly, irrelevant to themselves and others. There is symbiosis, social decline, and despite the movie's humor, it is quite depressing.

Maybe, just maybe, some solutions lie in our continued intellectual development, evolution as humans, and engagement in our lives?

The good news is that government is going to solve all this. We must remember that more government and laws is always the answer (sarcasm). Try to remember Ronald Reagan's point

“If more government is the answer, then it was a really stupid question.”

With the Gipper in mind, let's delve into the State Department Report (executive summary is available on the internet -below). To view the whole report, you have to request it. The information overlords say that the price for this knowledge is that the government must know that you asked for and received it. Um, well, ok. Let's face it, the government can presently know virtually anything about you anyway.

(https://assets-global.website-files.com/62c4cf7322be8ea59c904399/65e7779f72417554f7958260_Gladstone%20Action%20Plan%20Executive%20Summary.pdf)

Here are the five main points that the experts recommend in order to address the Extinction Level threat that we face (in their perspective):

1. Establish interim safeguards to stabilize advanced AI development
2. Strengthen capability and capacity for advanced AI preparedness and response
3. Increase national investment in technical AI safety research and standards development
4. Formalize safeguards for responsible AI development and adoption by establishing an AI regulatory agency and legal liability framework
5. Enshrine AI safeguards in international law and secure the AI supply chain

Some will shudder at the use of "enshrine" ("cherish or sacred") and International Law. The world has witnessed a parade of challenges with international law, and there are failures here, there, and everywhere. Successes? Certainly, there are successes. But we must know in our hearts that International law is no panacea or be-all. The UN response to any variety of world threats might cause skepticism. Or, the impotence of the World Court's dependence upon the Security Council (with full veto power in the hands of various nations) may give pause.

But to the substance. The recommendations are essentially (1) we need emergency rules right now, to regulate the what, who, and how of AI; (2) we build defenses against AI (and the miscreants perhaps) and decide how and when we will deploy them; (3) we spend more money (your money) in studies and rules; (4) we work out more, build muscles, and thus ready ourselves for the assault and our response; (5) we invest faith and hope in the international community, United Nations, treaties, and World Court.

In the end, the solution proposed by the government is seemingly more government. Is it possible that there are existing laws and tools in place that regulate activity? Will there be consideration regarding the prosecution of those who commit mayhem with hammers, or will the focus remain squarely on examining and defining what a hammer is or could be? Will we focus on the fact that there is now a larger hammer?

In the end, is it of any concern to anyone that number one on the Report's list is not "evaluation and implementation of current laws as regards the use or misuse of AI and other technology?" If someone builds a bigger hammer, shall we jump to a new "bigger hammer" law or might we consider that hitting someone with a hammer is already a law and that the size of the hammer is largely irrelevant?

Gender Evolution

It was recently International Women's Day (March 8). In the sometimes vacuous and disturbing world of social media, there are positive moments. One example is that I learned it was International Women's Day. Not through the news, but through social media, I was informed. That ability to pass information is a critical benefit of the medium. Granted, there are plenty of countervailing challenges with those platforms, but some opportunities for greater knowledge.

There was a series of posts in which various women lawyers expressed moments of discomfiture or disappointment based upon the boorish (or worse) behavior of males. I was admittedly surprised. In my world, I do not witness discriminatory behavior in the practice of law, the legal education system, or the workers' compensation community. But, the complaints and anecdotes made me think.

I checked some figures on gender in the legal profession. According to the American Bar Association (a voluntary trade group to which some lawyers belong), less than 40% of the lawyers in this country are female. It notes that the participation is increasing. There have been incremental increases in female participation in this profession.

Another ABA report says that the population of American lawyers is around 1.3 million. That equates to about 780,000 male attorneys and 520,000 female attorneys and a current difference of 260,000. If law schools maintain a graduation rate of 50/50%, it will take a notable time before the practicing population is 50%/50. A more rapid path to that parity comes only if the graduating female students markedly exceed the males.

Men have been, and remain, the majority of legal practitioners. That means that there is a majority/minority relationship in that marketplace. Despite that, there have been some notable achievements in the last 100 years or so. The fact is that one can identify many "firsts" in that period: the first female lawyer, judge, appellate judge, etc. The first ABA report above noted "From 1950 to 1970, only 3%" of lawyers were women.

Statistically, Women are at a slight advantage. They make up 50.4% of the U.S. population, according to the census. And law school admissions are certainly trending to the benefit of women also. According to Jurist, there have been more female law students than male for the last eight years. Thus, we are on a path to parity, to erasing that 260,000 disparity. But, gaining a small percentage each year will draw the division to equality very slowly.

And, any gains in graduation and bar admission will move toward parity in the profession. There could nonetheless remain disparity if the practice of law. Some note that there are challenges in retaining female attorneys. The practice is challenging in any regard, ask any lawyer. However, there is at least some perception that the practice faces particular retention challenges with women.

The recent social media discussion noted examples of inappropriate comments to female attorneys. There was mention of judges referring to counsel as "little lady" and perceptions of disparate treatment both by the bench and male lawyers alike. There was a story recounted in which a jurist made demeaning comments to a law firm partner about a young female associate. The statement was loaded with both invective and innuendo.

I have witnessed poor behavior, and to some extent striven to address it. One example that sticks in my mind involved a curmudgeon trying a case against a bright, young, female attorney. Throughout the process of marking exhibits and working through objections, the curmudgeon insisted on referring to the female attorney by first name.

That may seem like a small thing, but there is dignity in expressions. In hearings, we refer to professionals appropriately. That means last names for lawyers. That means titles such as "doctor" are appropriate when addressing participants regardless of their gender.

In the case of the curmudgeon, I was disinclined to intervene. I recall wondering whether intervention on my part would somehow be perceived as taking sides from the bench or signaling a perception that the young lawyer needed assistance (I admired her tenacity and to this day I doubt she needed any help). Was I troubled by the first name out of a sense of decorum or chivalry? I had self-doubt about my course and my role. Thus, I did not address it immediately.

But after several iterations, I corrected the curmudgeon. Not abrasively or curtly, just a simple "we address each other by last name in this room." One would think that with intelligent people, such a reminder would be sufficient. However, that day I would repeat that sentence several times. I wondered thereafter whether the curmudgeon was simply suffering from senility or was intentionally returning to the first name references as a method or plan.

At the end of the day, I am glad that social media alerted me to the fact that there remain curmudgeons in the practice of law. Despite judicial perceptions (I suspect that judges witness lawyer's "best behavior" more often than not), there seems a significant body of evidence that boorish and worse behavior remains in the practice of law. According to some on social media, they perceive judges to be the source of boorish behavior. That is more disturbing still. 

Some contend that there are various examples in which challenges and hurdles are more pronounced for certain women, with specific references focused on race, age, and more. We all likely want to believe that people are generally appropriate and that they do not strive to be hurtful, inappropriate, or worse. That said, I fear that there is at least a perception of some groups that there remains mistreatment, disrespect, and worse.

As with many challenges in society, there is perhaps a variety of approaches to remediation. I would suggest that the best first step would be our collective and unanimous realization that bad behavior is a potential in every interaction. There may be offense, whether intended or incidental. In every conversation, you have no control over how you are perceived. And you have no idea what kind of a day your listener is having.

As we progress (yes, age) perhaps we can each start with the premise that what we say may matter. Perhaps we should all be less concerned about whether we might offend with our intervention in standing up to curmudgeons. Instead, we should speak up when we encounter curmudgeons and be clear in our collective and individual insistence that professionals are treated professionally.

When someone does react or intervene, we aging citizens need to be particularly aware, and reactive. We have to ask ourselves, "am I becoming that curmudgeon?" Our futures require nothing less. 

Deep Fakes in Florida

The topic of "deep fakes" is back in the news recently, right here in Florida. Readers will remember that "deep fakes" have been in the news. The term refers to any time something is forged, whether it be someone's voice, image, etc. There have been newsworthy instances of See AI is a Tool (October 2023). that post introduced some youngsters in a "sleepy little town in Spain." They were accused of creating photos of their classmates using a computer, lurid photos, and sharing them online.

I noted there that the Spanish instances were not someone's face pasted onto another's body. That technology has apparently been a thing since the advent of computer images and various programs capable of manipulating them. No, these were created by AI, with the computer apparently analyzing clothed individuals and hypothesizing about how they might appear unclothed. A critical point, however, is that they were real people. Critical point two is that they were shared online.

That story had multiple levels of intrigue and trouble. First, cyberbullying (and bullying) can be accomplished without such tools. Anyone can be belittled, threatened, minimized, or worse either in person or online. The only difference between cyberbullying and in-person bullying is perhaps the imminent potential for physicality in person. Bullying is present on the internet, in the schoolyard, and in the workplace.

See Bullying is in the News, is it in the Workplace (November 2013); Aggressive without Being Obnoxious (August 2019); A Miserable Example (February 2022). Bullying can come in many forms, from almost any source.

The perception seems to be that bullying is increasing, at least online. Mental health experts contend that bullying is foundational to various challenges to mental health. The McGovern School of Medicine informs:

"Bullying can cause feelings of rejection, exclusion, isolation, low self-esteem, and some individuals can develop depression and anxiety as a result."

The news from Florida is from Wired. It reports that two middle school south-Florida gentlemen, "aged 13 and 14," have been arrested for "alleged sharing of AI-generated nude images." These are felony charges, and thus the newsworthiness of the story. There is also attention drawn by novelty here, in the fact that the law allegedly violated was only passed in 2022. It appears these two young gentlemen are the first ever charged under its authority.

Of course, anything AI is newsworthy. But this appears to be a more "cut and paste" effort of putting images of people's faces onto images of other people's torsos. The implication is that this is similar to more familiar Photoshop manipulation but with the help of AI. Unfortunately, the alleged incident is not unique. The story reports there have reportedly been similar news stories in Washington, California, and New Jersey. But, there have apparently been no arrests until now.

The South Florida gentlemen were identified in early December and arrested days before Christmas. The story recounts that a school administrator who learned of the allegations "interviewed the victims depicted in" the photos, and learned "they did not consent to the images being created." That seems, at first glance, to be a curious inquiry.

The images were allegedly of middle school students. One might instantly leap to the fact that those people are 12 to 14 years old, and incapable of consent in its basic sense. To what end would consent be of any import? But then one progresses to considering that the unclothed torso photographs were not of minors, only the faces that were affixed to them. In the strictest sense, perhaps the photos could be viewed as only partially of youth. 

In that, there is the potential that a court might conclude that such photographs are not actionable under various other laws. And that is where the 2022 law under which the South Florida gentlemen are charged becomes critical. That was CS/CS/SB 1798 (readers will recall that such a name means there were two "committee substitutes" (CS) for the original bill as that Senate Bill (SB) progressed to passage). This illustrates that there was likely spirited debate and various significant amendments as the law was considered and passed.

It created section 836.13, Fla.Stat. which provides for felony punishment:

"(2) A person who willfully and maliciously promotes any altered sexual depiction of an identifiable person, without the consent of the identifiable person, and who knows or reasonably should have known that such visual depiction was an altered sexual depiction, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084."

And thus, the rationale for exploring consent becomes obvious. The statute specifically requires that any actionable event would be "without the consent," and that the individual victimized must be an "identifiable person."

The law specifically defines what "altered sexual depiction" means:

"(1)(a) “Altered sexual depiction” means any visual depiction that, as a result of any type of digital, electronic, mechanical, or other modification, alteration, or adaptation, depicts a realistic version of an identifiable person:

1. With the nude body parts of another person as the nude body parts of the identifiable person;

2. With computer-generated nude body parts as the nude body parts of the identifiable person; or

3. Engaging in sexual conduct as defined in s. 847.001 in which the identifiable person did not engage."

There are a variety of other definitions and descriptions in the statute. Notably, this is not an "AI statute." The prohibitions are focused on "any type," and broadly address the cut-and-paste ("mechanical") to the Photoshop ("digital"), and beyond ("other modification"). It is a seemingly all-encompassing prohibition. While it addresses "cut and paste" in the present instance, one can readily see it applied as easily to efforts such as the Spanish example above. The statute is a worthwhile effort to prevent the bullying of people young and old. The scope is broad.

This is noteworthy because our focus must remain on the fact that AI is a Tool. There is too much inclination today to focus upon what AI can do, and how humans may misuse it. Legislation could be brought to bear on AI, on the tool. 

But, as this statute and the purported prosecution of the South Florida gentlemen illustrate, the law can address action (or inaction) in a broad sense. The potential use of the tool can be addressed in the law as part of a broader affront to a problem or challenge, regardless of whether AI or scissors and paste are the tools used. In this, we see again that AI is not the threat. The behavior is the threat. AI is merely a means to the end.

For the young gentlemen in this instance, there are likely difficult times ahead. Wired reports that the "parents of the victims" are "publicly urging the school to expel the boys." That may sound to some like a bit of an affront to the "innocent until proven guilty" to which we have so long adhered. That said, the press has long been a court in which trials have occurred without any of the formalities or protections of such vaunted concepts as due process, equal protection, or assistance of counsel. That is a topic for another day.

The charges under this statute could lead to conviction of "a felony of the third degree." That is significant. As Wired notes, this is the same potential punishment that one might face for crimes like "grand theft auto or false imprisonment." It is fair to say that section 836.13, Fla.Stat. reflects a dim view of the creation and promotion of these fakes.

It reflects that such photographs represent an affront to those depicted, a victimization. There is at least an implied admission that such depiction presents harm, which is consistent with the consensus of the emotional affront and potential for depression, anxiety, and more from such attacks. In the broadest sense, society's primary goal has to be the protection of youth. They are, after all, our future. This statute seemingly contributes to that protection, but while it includes youth it protects more. 

The prosecution or other conclusion of these allegations in South Florida will be newsworthy. The application of this statute will not change AI or Photoshop. Perhaps, however, it will change the inclinations of humans who utilize such tools? And in the process, perhaps it will prevent untoward and unconscionable bullying of students, coworkers, and people generally.

Felony Assault to Induce Abortion

There have been many pages penned here regarding poor behavior by lawyers and judges, sometimes with consequences. A news story from Texas reminds us that poor behavior can occur in any occupation and that credentials may or may not bear dignity or even recognition.

Mason Herring is an attorney in Houston. According to the internet, he is "a dedicated Texas lawyer" who "treats his clients with respect and care." He graduated from Texas A&M, and "received multiple awards and was honored for his journalism." In law school, he "excelled in pre-trial advocacy" and worked for the U.S. "federal court" in Louisiana. 

He was named to the "South Texas College of Law Young Alumni Leadership Circle" and the list of "Super Lawyers® Rising Stars."℠ In August of 2023, his website stressed "integrity," "trust," "excellence," and "compassion." These are powerful words, admirable goals, or in some instances perhaps merely cliches and punchlines. 

This morning, his website reflects only:

Other searches indicate he may now be an associate attorney at another firm

Some of the changes may be recent, as Mr. Herring has recently gained significant notoriety in Houston and beyond. ABC13 says that Mr. Herring "is the first and only person in Harris County to face a charge of forcing induction to have an abortion." Prosecutors there "allege(d) he put an abortion-inducing drug in the water he gave his wife on more than one occasion."

The story is intriguing. the news reports that Mr. Herring was perhaps less than excited to learn "his wife was pregnant with their baby." In that regard, prosecutors pointed to what "came out through marriage counseling, as well as through text messages later on."

The Daily Mail reports that Mrs. Herring was "was seven weeks pregnant with their third child when her husband of eleven years...started spiking her beverages." The two were already experiencing marital challenges related to her suspicions that Mr. Herring "was having an affair with a co-worker." Mrs. Herring "began collecting the drinks her husband prepared for her," and "set up cameras inside and outside their home." She gathered evidence of actions and substances. 

She reported her suspicions to the police and Mr. Herring was "initially charged with felony assault to induce abortion." That led to Mr. Herring

"accept(ing) a plea agreement to charges of injury to a child and assault of a pregnant person. He was sentenced to 180 days in jail and 10 years of probation."

"Integrity?" "Trust?" "Excellence?" "Compassion?"

Mrs. Herring, according to the Daily Mail, is currently involved in "divorce proceedings." She is reportedly less than satisfied with Mr. Mason's sentence, noting "I don't think 180 days is justice for attempting to kill your child seven separate times." She says 'If you divide it up, he's serving less than 26 days per attempt to kill my child."

When I read the story, I was reminded of a recent continuing education seminar I was compelled to attend by the Florida Supreme Court. See The New Professionalism (February 2024). There was stress there that a lawyer "is a lawyer 24/7." That is, actions and inactions in our personal and private lives might reflect on us professionally and on all lawyers. How do the actions described in the news support a conclusion of professionalism? What are the implications for the public perception of the legal profession?

Ultimately, per the Daily Mail, the outcome was the birth of Josephine Mason. The attempts regarding her life and development were not successful. However, she "was born 10 weeks premature...and spent three months in the hospital, before she was able to go home." According to Fox News, Josephine experiences "developmental delays and attends therapy eight times a week." 

In all, it is a disturbing story. It reflects on attorneys everywhere, like that or not. It reflects on fathers everywhere. It is troubling from every perspective. But one must wonder specifically how the three children will perceive their father's guilty plea? Their father, a person upon whom they deeply depended for love, support, and succor has pled guilty to (at least attempted) harm. The personal impact will perhaps be very difficult to navigate, particularly for Josephine. 

At least as of now, the professional implications remain unclear, whether the maintenance soon concludes at his website, or whether he has joined another firm. According to The State Bar of Texas, Mason Herring remains "eligible to practice in Texas."

Accolades are certainly nice. School achievements are worth noting. Success in practice and a community are discussed and exalted. Right or wrong, lawyers occupy a special place in society. And perhaps "super lawyers" are more special than others?

The ABA Model Rules of Professional Conduct recognize that:

Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves. Lawyers play a vital role in the preservation of society.

What is the reflection here on lawyers, "the profession, and the public interest?" There can be debate about lawyer ethics and rules. Many have struggled with describing or even understanding how such ethics and rules integrate with or augment "professionalism." But, in the end, society expects more of attorneys. Beyond the personal, familial, and paternal implications of this story, how does news of a guilty plea impact society?

"Integrity?" "Trust?" "Excellence?" "Compassion?"

Ineffective Assistance

The criminal defense legal practice has evolved over the almost 250 years that America has existed. Our legal system is imperfectly bound by purported parameters that are equally imperfect. I strive in my teaching to help students realize that these challenges exist and persist. They all want to excel, to go to law school, and to make a career path in this imperfect world of statutes, rules, and the ubiquity of judicial interpretations, the "common law."

The focus is on criminal cases largely because of the Sixth Amendment to the Constitution. While that was ratified in 1791, the implications were incomplete until at least 1963 when Gideon v. Wainright, 372 U.S. 335 (1963) concluded a somewhat clear interpretation of the right to counsel in criminal cases. In fairness, there was reliance there on the Fourteenth Amendment also, and it was less than 100 years old at the time (1868).

The old saw from television is familiar enough to everyone who has not been living under a rock. In Miranda v. Arizona, 384 US 436 (1966), the implications of the Sixth Amendment, Fifth Amendment, and Gideon were extended beyond the right to counsel to the right to know about the right to counsel. "You have the right to remain silent . . . "

Since that time, there has been the potential for a criminal defendant to argue about how they were represented (or not) in those proceedings. It has become known as "ineffective assistance of counsel," and the Legal Information Institute says this describes when "legal representation fails to meet the minimum standards of competence and diligence expected from attorneys."

Essentially, there is the right to counsel that we have found in the Constitution, but that counsel is not sufficient merely because someone went to law school. Competence is not a degree, a personality trait, or in any way inherent. That seems axiomatic. There are significant threats in being criminally prosecuted. From its worst outcome of death penalty to incarceration, to the reputational harm of mere prosecution, much is at stake.

Unfortunately, there is no such counsel guarantee in the civil realm. No one in a civil case has a constitutional right to effective assistance of counsel. There is no right to counsel in civil matters at all. As a result, many people struggle through their legal challenges alone in the maze of laws and rules. They cannot find a lawyer interested in their challenges, or cannot afford the fees that would interest them. 

More unfortunately, many also suffer from the incorrect assumption that the lawyer they have hired is competent. The sad truth is that there are incompetent, sloppy, and ineffective lawyers.

NBC News recently described an instance in the criminal setting. It reminded me of Harry and Lloyd, Zacharia Crabill, and Forrest Gump. See AI Incognito (December 2023). There is illumination of a "2014 murder trial" and the efforts (euphemistically) of counsel to defend the allegations. There was a conviction, incarceration, and then a 2022 reversal based on "the defense lawyer's 'egregious' conduct."

The defendant might be viewed as fortunate. He had both the right to counsel and the funds to pay one. He paid over $100,000 and seemingly thought he had hired an expert. Did the lawyer use artificial intelligence like Harry and Lloyd? No, there was no AI in 2014. The defense lawyer used the next worst thing, the Internet. And, it appears he did so during trial, "Googl(ing) forensic issues like DNA." 

There will be those unexpected moments, and the lawyer has to respond. But the time for delving into the science of a case needs to be before trial. Preparation is a hallmark of competency. The teacher never let you do yesterday's homework in class. That should have taught you something. 

The defendant claims "he was floored when the lawyer put him on the stand without properly preparing him." Preparing witnesses is Lawyer 101. The defendant was further troubled "when his lawyer rested without calling a single expert witness to challenge the prosecution’s case." There were conclusions that the lawyer demonstrated "sheer lack of knowledge regarding any of the technical and scientific issues relevant to the criminal proceeding.”

Eventually, a new trial was ordered in a "blistering 17-page decision" regarding the failures or mistakes of counsel. The lawyer admits he was not prepared for such a fight. There is no dispute that he lacked sufficient experience. 

There is no right to counsel in civil proceedings. There are challenges and complications in the course of representing any party in litigation. Over the years I have witnessed some lawyers that are absolutely stellar at the task, and others that we might charitably characterize as "not so much." Unfortunately for the public, it is difficult or impossible to determine who falls into which category. It is equally difficult to deal with the results that may follow.

In the NBC News story, there is a conviction of a crime. There the downside is incarceration, shame, and despair. But in any legal proceeding, there is a downside. There is the real chance of financial damage in either being ordered to pay or in not recovering what you are due. The fact is that any legal proceeding can be a life-changing event.

Lawyers hold the lives of people in their hands, and unfortunately, there are a fair few who do not perform competently. Through inate inadequacy, sloth, or overcommitment, they fail. More unfortunately, spotting poor performance may be beyond the client's capacity. It is, as I noted at the outset, an imperfect system in which we labor. It is filled with imperfect humans, overtaxed resources, and complications. There are risks, challenges, and imperfect knowledge.

I would like to conclude here with an upbeat recommendation for rectifying the failures, addressing the challenges. But none occur to me. Perhaps Harry and Lloyd can find us something on AI?

Dope and Heart Disease

I have written a post or two about weed. See Marijuana May Be a Problem (January 2016) Marijuana Headaches in Colorado (March 2017); Federal Law Matters in Maine (June 2018); Decriminalizing Marijuana (May 2021); Edible but Stomach Churning (October 2023); Edibles and Illness, (November 2023); Harmless? (January 2024). There has been a sentiment in this country that dope should be legal because it is a panacea of harmless relief to so many. 

The good news about dope just keeps rolling in. As many in the marketplace recognized, during the prohibition years, there was very little dope grown in the United States (permissively) and a dearth of research. But, in the 21st century progress came in the form of decriminalizing dope on the great promise that it doesn’t hurt anybody.

Well, the decriminalization of pot has had side effects. One of which has been an increasing volume of investigatory studies regarding the use of this "harmless" drug. For the sake of clarity, a few voices have remained clarion clear throughout. A very few of us have suggested that perhaps "harmless" isn’t harmless.

The latest study suggests that extremely infrequent use of tiny quantities of pot can lead to an increased risk of medical conditions. The largest proportion of American deaths are traceable to cardiovascular failure (heart attack 695,547, stroke 162,890, etc.). Cardiac failure beats cancer, COVID, and more. And it turns out that dope doesn’t help that. In fact, even minute use has been now demonstrated to be associated with an increased risk of cardiovascular disease.

It is important with any medical test or study that we keep in mind the potential for anecdotal and coincidental outcomes. One of the great feelings of small minds in interpreting science is the inclination to associate concurrence with causation. 

It is entirely possible that we might see an increased prevalence of an injury without causation. For example, what if herniated discs were more common in Airline pilots than in fighter pilots? One might draw the conclusion that fighter pilot activity is more orthopedically relevant or challenging. Or, one might note that fighter pilots tend to be, on average, some 20 years younger than airline pilots. In that example, care would be required to determine if the aircraft or the age is driving study outcomes. 

With that caution in mind, it is nonetheless intriguing to find out that there may be a statistical link between blowing dope and cardiovascular failure. The first thing one might question is, why now? In other words, let us all admit, frankly, that Americans have been blowing dope for decades. Is there a sudden prevalence of cardiovascular events? The answer is likely no. Heart disease has led the curve since 1950. All that has changed, with decriminalization, is more likely the proclivity of patience to admit to dope use.

In other words, the same volume of individuals was likely having cardiovascular events 10 years ago. That prevalence has not increased. However, when listing their medical history, 10 years ago, the smart patients were not listing "illicit drug user" in their medical history. As "illicit drug user" was not listed, there was no statistical possibility then of aligning that cardiovascular event with Mary Jane. 

The authors of this NBC article suggest, however, that a recent study is not an incidental finding. They note that this study result “add(s) to the growing body of evidence, connecting marijuana, use to cardiovascular” issues. There is more than one study, apparently, that ties blowing dope to cardiovascular disease. 

The study examined "435,000 people between the ages of 1874.” It was compiled by the Centers for Disease Control. The results were published in a peer-reviewed publication: The Journal of the American Heart Association. This could be serious. Now that’s not to say that the study results are true or not. The fact is that articles have been retracted before. Time will tell. 

In a broader sense, one can never base conclusions entirely upon the credibility of the messenger. Some portion of our analysis (most) must always be focused on the actual evidence. Paraphrasing, Deming (or others) "in God, we trust, all others bring data.” Data will come. There is money in researching Ganja. 

Nonetheless, some will perhaps begin to question whether the uninformed and unrepentant marijuana marketers and advocates may have overstated their “harmless“ sales pitch when advocating for broader, simpler access to weed. The bad news is that Herb is here to stay. It has been decriminalized and is ubiquitous. There are illegal (federal law) distributors on seemingly every corner and your government has forbade federal law enforcement from enforcing the law that it refuses to change. It would be laughable if it were not so serious. 

The challenge, now that Ganja is ubiquitous in our cities and towns, will be to mitigate the impact on society, through more ready and affordable access to medical care. Yes, we face a physician shortage. 

See Supply and Demand (February 2024). Yes, markets are already rationing, delaying, and forestalling necessary care. Crisis is upon us, and smoking Grass will make it worse. 

But, Marijuana is not alone in its societal prevalence, nor its potential to impact cardiovascular health. The similar risks attributed to tobacco, alcohol, and stress have been long recognized. There are risks associated with diet, lack of exercise, and more. There has been no sincere effort to criminalize stress, snack cakes, or booze. These are accepted components of our world despite their propensity for causing or contributing to death. 

We could ban such things, in hopes of promoting public health and minimizing its cost. But that will not happen with sugar, alcohol, or cigarettes. The government will never ban these, they are too much fun to tax. There is no reason to expect that pot will be any different. Instead, there will be further studies, eventually warnings, and death. Those who wish to be high will be allowed to be, and society will pay the healthcare costs associated with it. 

Harmless? That was a ridiculous assertion from its first iteration. Inhaling smoke is not healthy. Weed is not healthy. But, that "harmless" lie is little different than many that have been perpetrated on us over the years. The facts will continue to evolve and people will make their choices. This is, after all, a free country. Death is inevitable, but its velocity and cause are sometimes subjects of choice. 

In the end, when it is you who needs a cardiologist appointment, you may wonder if the wait would be shorter if not for all the self-inflicted damage that is waiting in the line in front of you. As you wait, just remind yourself that alcohol, sugar, and dope are harmless.  

Self-Replenishing in Broward

A "closed ecosystem" is:

"a self-replenishing ecosystem in which life can be maintained without external factors or outside aid."

There is no plethora of such systems. We are not surrounded by such independence and interconnectivity. There was a time when geographic isolation drove such characterizations. The advent of technology long ago began to threaten and invade such singularity, isolation, or novelty. Many remember when one might drive from West Palm Beach to Miami over hours with punctuations of country driving interspersed between what has now become a massive and uninterrupted urban sprawl. Times change. 

I recently attended the Broward County Bar Association Worker’s Compensation Section meeting. I have enjoyed each iteration, and am grateful for invitations over the years. I saw some familiar faces, and reconnecting is of great value. I ran into some who were a bit affronted that I did not know them or recognize their names. Perhaps we all think we are a bit more famous than we are? I have no idea what it means when someone thinks they are famous.  

Late in the day, the conversation turned to various events, strengths, and the great turnout at this particular 2024 venue. I opined that live events are gaining traction in a post-Covid world. The Florida Bar Workers Comp Section "meet and greets" have been widely attended, and highly praised. There is a viral desire to be face-to-face. There is gratitude for the effort that requires. That desire may explain the great turnout in Broward. 

A group of us tried to further distill the spirit of the Broward County group. We struggled. I have always perceived this spring meeting as a positive experience. There are many lawyers, many opinions, and much diversity. I have never felt anyone pulling punches at this Broward event. But, I perceive it as heartfelt, interactive, and collegial. How does the collegiality in Broward always overshadow any disagreements? Is this a closed ecosystem?

One of the attendees, in the discussion of distilling the essence, said “the secret is that we all really do like each other.” That seems awfully simple. Can it be that easy? Is that so much to ask?

Substantively, I never expect to gain formal education from such gatherings. Generally, the CLE presentations are excellent, informative, and full of opportunities. However, I persistently find myself drawn to conversations in hallways, lobbies, and vestibules. Many people, enjoy, catching up, and casually conversing. I find that informative, refreshing, and endearing.

I did sit through several sessions of education. Content comes and goes at such opportunities. This year, I was particularly taken with the caselaw update. There was focus on both what is known, and what is debatable. I persistently find myself wondering if we really know as much as we think. "Known" may be a bridge too far in our self-perception. In any event, it is great to strive to understand different perspectives. Whether one agrees with analyses or not, it is extremely healthy and powerful to hear how people are interpreting decisions.

There are a great many who live and die by stare decisis. They believe in following court interpretations and precedents. There is an evolving trend in some quarters to revisit statutory analysis and to essentially devalue or ignore case law interpretation. There is, in that, some positivity of purpose. Just because a Court has decided it, just not being the answer remains the same today. This is particularly true if the statute has changed. See Precedents and Statutes (August 2023). 

The other program, I always find intriguing is the "view from the bench." It usually includes some illustration of differing perspectives. One might expect each judge would have an identical, singular view of process, procedure, and practice. As we grow and learn, we realize nothing to be further from the truth. Judges are individuals, they are independent, and they have their own views and perspectives. There is value in striving to understand how the judge in your case is likely to perceive and proceed. 

In this program, I was subjected to almost a full hour of Judge Daniel Lewis' humor. If you’ve never had a chance to interact with Judge Lewis, as they say in the South, "bless your heart." Decades? Longevity? Judge Lewis blew past 30 years of service a good while ago. You can’t tell it to look at him, he looks the same as he did the day I met him in 2001. He has not aged a bit, and rightfully deserves the title of the "Dick Clark" of Worker’s Compensation. 

All three Broward judges were effective and informative in their presentation. But, their day-long presence and participation was also powerful and reinforces the community feeling of this annual event.

So, to be clear, utmost gratitude and respect for the judges. But, as to the humor, perhaps there is strong support there for keeping the "day job?" In fairness, Judge Lewis got a lot of laughs. But, as Judge Dietz once pontificated "my jokes became 34.7% funnier the day I was appointed." Now that is funny. 

Who goes to these events? Obviously, some practitioners that need to learn and do better are there to soak up information. Amazingly, many in the audience should be teaching. But some of those are striving to headline less. I get that. Others are at such events to market their services. Some come to see old friends. Some were there to honor the Hall of Fame inductee Mr. Massey. And perhaps some came just to reinforce their strength, energy, and collegiality. There is power in community and it is worth pursuing. If it is a closed system, is it unique?

On the same trip, I had opportunities to chat with the staff and judges in three district offices. It was a great opportunity to gather feedback, and perceptions, and reminisce. I am astounded by the number of OJCC staff members who measure their service in decades. Time flies, and many of them I think of as contemporaries. That reflection of my own age is sometimes hard to face. I am proud of our long-timers and their contributions to serving you. 

In all, a great trip to Broward. There were many opportunities and revelations. The best line of the trip though was the comment about "really liking each other." There is genuinness in that. There is sincerity in that. But, as I hit other workers' compensation events around Florida, I see the same. The atmosphere of collegiality in Broward is charged and powerful, but it is not unique. 

The community there is no more a closed system than is the Florida Bar Section. But, there is community. And it is magnified by the tendency toward a closed ecosystem. Each is "self-replenishing." Each is maintained without significant outside help. But all are sustained by the collective collegiality, cooperation, and contribution. 

Test my collegiality theory and join me in Miami and West Palm Beach in March. I am looking forward to hearing what is important to you. We can catch up, reinforce our commitment to community, and perhaps learn something? I will keep the jokes to a minimum, I promise. If you plan to attend either event, email and let me know. I will strive to ensure that we get an accurate head count.