Patience and Time

Time. Is there ever enough of it? Perhaps there is universality in time, or it could be relative. I leave that to the quantum physicists out there. One great perspective on Time was simply titled "Time" (Pink Floyd, Dark Side of the Moon, Harvest/Capitol, 1973). The lyrics are incredible, and the older I get the more sense they make. Must be a senility thing? Click the link and read the lyrics, seriously. 

There are reminders there. They focus us on our demise, the fragility of this existence, and the persistence of time. In some part, that is about knowledge and perspective. Floyd notes that about youth:

"And you are young and life is long

And there is time to kill today"

And there is reminder that we can all lose track of tasks and assignments:

"Plans that either come to naught

Or half a page of scribbled lines"

Are we keeping up with the day-to-day? Or, are we persistently falling behind? I recently took a flight and they gave me a cocktail napkin that said something like "the best things start on the back of a napkin." Where are your notes? What of your dreams? How will you confront your El Guapo? The Three Amigos (Orion 1986). 

In my early days at the OJCC, we were struggling with the challenges of the "new" and revolutionary electronic mail. Keep in mind that was 2001, thirty years after the first email was sent. But remember also that email really came into vogue in the 1990s. We were amused, enthused, and at times abused. Email revolutionized the daily joke, enabled keeping up, and accelerated our world.

Then came all the attendant threats and insults. Email was not the problem, it was a tool. It turned out to be incredibly powerful and yet something we had to become increasingly wary of and careful with. As with many tools, we had to revel in its wonders and yet learn to appreciate its shortcomings and threats.

And email intertwined with time. When we discovered it in the 1990s, we loved its speed and ease. After we each sent our first "d'Oh" email, we also lamented that speed and ease. We soon found ourselves sifting through full inboxes. That speed and ease facilitated us sending requests and missives, but it likewise empowered others to send them to us.

I can remember when 100 emails per day was an expected volume. When that reached 200, it was fortunately inclusive of a great many diversions that could be deleted without much thought. The novelty of the daily joke, the casual inquiry or announcement, passed. Social media soon came to replace those. The inanity remained but on different platforms. First with "bulletin boards" and then with an increasingly complex, intrusive, and untenable spirit and intent.

In 2002, when email was relatively new, the OJCC struggled with judges and others who loved the "reply all" button. Talk about a waste of time. There was a period when the IT department disabled some of our distribution lists because of indiscriminate use for innocuous inquiries each followed by incessant and unnecessary "reply all" responses.

One that sticks in my mind was about an EMA provider. The original "to all" message was essentially whether anyone had heard of a named physician. That started a cascade of "nope" responses and a couple of "wasn't he part of _____?" questions. Of course, those "wasn't he" messages started a new cascade of "nope" and then other questions. In a classic avalanche methodology, inboxes were soon overflowing with everything from the innocuous to the absurd.

I was reminded of the old saw regarding pig wrestling. George Bernard Shaw supposedly said “Never wrestle with pigs. You both get dirty and the pig likes it.” If that doesn't encapsulate the breadth of social media, I cannot imagine what would. 

Another email exchange that sticks in my mind occurred close to the end of my time on the Pensacola Bench in 2006. I had sent a message to one of the more seasoned judges about an order he wrote. When I did not hear back from him in a few days, I called, discussed, and put it out of my mind. Two years later, I got a message from Outlook that my 2004 email had been "deleted without being read." At first, that hurt, but when I realized it was two years old it occurred to me that perhaps there was a reason he did not reply to that email - perhaps he never replied to any and just dumped the folder every couple or years?

This all came rushing back to the front of my mind when I opened my email On April 12, 2024. I had received an "unlist" email. We get a couple of those everytime we send out an email blast to our users. The blasts are sent no more than monthly and are intended to steer the community to important happenings or challenges in workers' compensation. I was a bit surprised to see an "unlist" though because we last sent out a blast on April 1, 2024.

I looked again, and the header said I sent out a message "Tue. Apr 10," but my mind rejected that. April 10 was Wednesday. I opened the message and in fact I was wrong. April 10 was a Tuesday, in 2018! I am not sure if the sender just opened that 6-year-old email recently and decided to "unlist." 

Or, perhaps, the message was opened 6 years ago and the recipient has been contemplating whether to "unlist?" Some live by the motto that "fools rush in." Elvis, Grammercy Records, 1940. Maybe the sender was worried about hurting my feelings? That's a fool's errand, but don't tell anyone. 

The points here are varied. First, harkening to the many complaints about professionalism I hear lately, if someone ghosts your email or text, call them. Just because you love texts does not mean that they do. Next, imagine getting 200 emails daily. Think first, is this message that really needs to be sent? If so, must it be a "reply all?" Before you answer see Tonight's Plot (April 2023). 

Is it possible one might sit on a message for 6 years and then respond? Certainly. There are all levels and descriptions of technology comfort out there. We are each different, and there will be exceptions to any rule. Is it meaningful when someone deletes your message, ghosts you, or "unlists?" Perhaps, but don't take things so personally. 

But, most important, there is just not enough time. Not enough to squander. Not enough to waste. Not enough to excuse our failure to slow it down, to stop and smell the roses, once in a while. I will be pausing this week to attend the Forum at ChampionsGate. In the words of Bob Segar, "See some old friends, good for the soul." Hollywood Nights, Capitol, 1978. I hope I will see you there.

The 800-Pound Gorilla

Sometimes we struggle with challenges we don’t perhaps fully understand. At times, forces conspire against us, consciously or not. Life is a journey filled with uncertainty, misconceptions, and mysteries. But frequently, the problem is all too clear, an 800-pound gorilla in the room.

The world of work faces a systemic dilemma in the midst of the third decade of the 21st century. Generations have been raised with various values and perceptions that we do not necessarily understand. Some believe that the distinction is somehow starker in the community of workers' compensation, but I am dubious. The fact is generations change, values evolve, and today will never be yesterday. The Next Gen will have as much to lament in forty years as we have today. 

Some believe that part of our workers' compensation challenge is based upon a conscious decision to neither recruit nor train young professionals early in the 21st century. Proponents of this theory argue that increased automation facilitated a minimization of human investment and that the expense of training was consciously and purposely avoided through industrial cannibalism.

Cannibalism? Davero? Si. An industry executive once explained to me that in the late 90s, it became far cheaper in the risk business to lure one’s competitors' employees than to recruit and train your own. Because technology was facilitating productivity and efficiency, the paradigm made sense to some, perhaps to many. Training programs were diminished, career tracks were abbreviated, and automation was leveraged. 

As Sabrina Carpenter so poignantly reminds in Thumbs, EVOLution, 2016:

It never ends till the end, then you start again
That's just the way of the world

Others with similar perceptions believe that the law firms in workers' compensation similarly stopped attracting young lawyers to after the 2001 and 2003 reforms. They lament and blame attorney fee legislation. These scholars rarely address perceptions that the “donut hole" (February 2023)) is experienced widely in America. They do not even attempt to answer the question: if Florida’s reform legislation created the donut hole, how did it do it in other states?

The 800-pound gorilla in the room

For too long, I have listened to pontifications regarding the accidental nature of Worker’s Compensation. There is no arguing with the simple fact few, if any, professionals set out, purposefully, for a career in Worker’s Compensation. This is a destination and a nice one. It is a place we have all benefitted from, learned from, and which a few love. But, it is also a destination that virtually no one set out for. We are accidental tourists here. 

In the end, that is likely the 800-pound gorilla. The challenge is not about this space being livable. It is not about whether one can thrive here. It is not about desirability, functionality, or even money. In the end, it is likely only about knowledge. Knowledge.

The conclusion of Field of Dreams (1989), shows hundreds, or perhaps thousands, of headlights clogging the road, and approaching Kevin Costner‘s farm. The spirits advised him “If you build it, they will come.“ Miraculously, in fact, they did. But that is fantasy. Has anyone ever figured out how those people in the cars ever learned of the field of dreams? It is a fantasy to believe people will spontaneously come. For more on the Field, see Uncle Buck to Ray Kinsela (July 2021).

The 800-pound gorilla in the room.

Today is no different than any other prior era. There is an abundance of young people who are diligently searching for a place in this world. They may have different values, but they are striving for a today, just like we did yesterday. I spend hours with them, they are phenomenal, intelligent, motivated, and worthy. They are not like me, but they are worthy. Unfortunately, to a person, they have likely never heard of the workers' compensation community.

At the conclusion of The Bourne Identity (2002), the old guard is struggling with the challenge presented by their prodigy, Jason Bourne (try to forgive that this great line comes from the villain - spoiler alert, he is not in the sequel). There is some argument as regards dealing with that 800-pound gorilla. One of the senior CIA officials suggests to the other:

"Well, why don't you go upstairs and book a conference room. Maybe you can talk him to death."

The poetry of this statement is palpable. Our analytical side convinces us that we can cipher through our challenges, build, consensus, and conspire against the challenge. Unfortunately, having booked the conference room, we have done plenty of hand-wringing and the problem is still sitting there.

The 800-pound gorilla.

This market will survive. There will always be workers' compensation. Despite the lamentations, it’s entirely likely it will be better tomorrow, even if not the same. And that’s truly the point. It doesn’t really matter if tomorrow looks like today. It doesn’t really matter if we see ourselves in the next generation. What matters is that there is a next generation.

The 800-pound gorilla.

There is a challenge to attract talent. That is being experienced from the highest level to the entry level at entities across the globe. It’s convenient to point to this or to that. It is comforting to blame, technology, the pandemic, or any other cause that is not “me.“ Convenient. Comforting. Useless.

There are a variety of potential solutions. I have been privy to several suggestions. Some plans are more grandiose than others. But to anyone taking action, I say "Kudos to you." I have chosen my path, and write today to invite you to join.

Last week we mailed close to 400 introductory letters to colleges and universities across Florida. These are directed to various undergraduate professors, department heads, and deans. We have high hopes that their students may have an interest in this dynamic career path. Our letter offers a simple introduction to the topic. And we offer, a classroom visit by someone(s) from this community.

We’re not offering placement, recruitment, a job fair, or employment. We are offering information (use the QR code above) on the premise that knowing the truth may bring value. There is a chance we may put you or someone like you in a classroom to describe the opportunities in this community to the young and ambitious that will inherit this world. 

These institutions are full of young people who labor towards a degree, as ignorant to the field of (Dreams of) Worker’s Compensation as I once was. I suffer under no illusions that we will receive 400 responses. I do not think we will speak to 400 students next year. But, the point is to continue striving for those opportunities to introduce this community, these professions, and the significant human need.

The 800-pound gorilla? Those of us in this industry and community know that the challenge is knowledge. The fact is that many of us, had we known this community existed, would have strode into it instead of stumbling, so many years ago. Can we inspire today's youth to stride in? Can we do better than those who preceded us?

If you would be interested in speaking to a class in your area, email me david.langham@doah.state.fl.us. I am making a list and checking it twice. What are your interests? What kind of class would you feel comfortable addressing? Provide your geographic preference and your perceptions of your subject matter or educational track preference(s). 

The 800-pound gorilla? Why can’t it be you?

A Little Teapot

There is an ancient rhyming song that features a teapot. I have heard it many times over the years. It is used as an interactive with children and is quite entertaining. One version ends with the realization that the singer is actually a sugar bowl. 

I was reminded of that when I noted there are various issues that seem to persist in the news. One of note is identification. The news is replete with people's stories of identification. There are those who struggle with that, and rightly so perhaps. Each is entitled to her or his own beliefs in the general sense. If you believe you are a little teapot, I won't argue with you. But, if you start warming someone else's water, then there may be a problem. 

That "someone else's" thought came to me recently when NBC6 South Florida reported on a "Miami  immigration attorney" who was arrested. The story details are a bit sordid, and I will skip the details of the assault allegations detailed there. The bottom line here is that the accused ended up in court. The accused, according to his attorney, is "an attorney." The news station was curious and inquired to find that the accused "is not a current or former member" of The Florida Bar. 

What is an "attorney?" If you graduate from law school does that make you "a graduate" or "an attorney?" The American Bar Association defines attorney as "a licensed professional who advises and represents others in legal matters." But, the ABA is merely a voluntary club that some lawyers join. Merriam-Webster is a bit less specific: "one who is legally appointed to transact business on another's behalf." Well, by that definition you need not even be "a graduate." The Webster definition might include a "power of attorney" or similar delegation. 

The Legal Information Institute up at Cornell says "attorney" means "Someone authorized to practice law; a lawyer. Also called attorney-at-law." So, perhaps not a "graduate," regardless of how many times one "graduates?"

The news story notes that the accused has a website on which he/she states "he has a juris doctorate and an LLM." A quick Google search also revealed that he/she possibly has a PhD or an M.D. Degree. Or, at least he/she self-identifies as "Dr." According to his/her website, he/she "holds five advanced undergraduate degrees in the United States." That is intriguing because the degrees listed include only one undergraduate degree, and not "an LLM," but three. That is a great deal of college. 

The Florida Bar was clear in the news story that "immigration attorneys can be licensed in another state and work in Florida." Thus, the lack of membership in The Florida Bar is not necessarily definitive on any point as regards someone engaged in "immigration." 

One is perhaps left to wonder if the accused is a doctor. In the litany list of degrees, no medical or PhD is mentioned. Then I remembered the issue about this time last year. See I'm a Doctor Too? (April 2023). That post discusses how some feel that lawyers should be allowed to call themselves "Dr." based on their Juris Doctor degrees. How does the public perceive that? When they scream "is there a doctor in the house," could they possibly expect me?

But, the last time we heard from The Florida Bar, it was o.k. for Florida lawyers to call themself Dr. Well, maybe. Even so, that would depend on being a lawyer. Or, is it sufficient that you graduated? I'm a Doctor Too? noted some in medicine that believe earning the degree is not sufficient in medicine, and that the "Dr." should be used only by those with a license to practice medicine. So, should a medical school graduate advertise being a doctor, and merely limit the practice to something permitted for non-licensed?

And then, what if there is a license, but it is not from the state in which you practice? If you have a license to practice medicine in Iowa, is it permissible to hang a shingle in Florida and call yourself "Dr.?" Would the result be any different if you earned a juris doctor degree in Western Michigan and moved to Florida? Could you call yourself "Dr." in Miami? Is this an issue for The Florida Bar, or for some other bar, or if the issue is being a "graduate" is it an issue beyond the pale of any bar?

The facts of this story are at best intriguing. Is there a public perception issue when one self-identifies as "Dr." Does it matter if they do or do not attempt to heat someone else's water? Is it sufficient if someone merely feels doctory? Lawyerly? As the case proceeds, perhaps there will be further word about the status and licensure of the defendant. 

But, in the end, does it matter what the public perceives? Is there a labeling issue that bears examination? At best, intriguing. 

Recriminalization

The news has recently focused on decriminalizing drugs. The British Broadcasting Corporation recently noted that British Columbia is the first Canadian province to do so. It notes that there are many fatal overdoses. That is not news. I have written about overdose for years. There is a growing problem with people putting chemicals in their bodies. Water is wet, the sky is blue, the Browns choke every year. Some truths are unavoidable.

The BBC notes that seemingly each year we set a new record for deaths. In the US the rate reached 112,000 most recently. That is more than died in our entire involvement in Vietnam. I have used that comparison before. I used it in COVID-19, see Desensitized to Death (August 2020). I have used it regarding narcotics, see Opioids, Marijuana, and More (September 2017). People are dying, and there is apparently little that can be done.

Why the fatalistic acceptance? The bottom line is that the vast majority of these people are voluntarily putting chemicals in their bodies. They choose to take significant risk, rationally or not. Some enjoy a release or a trip. For some, unfortunately, it is their last trip. Those who advocate decriminalization are convinced that the problem is not with these decisions but with the "toxicity" of the "street drug supply." 

If these people could instead access pharmaceutical-quality substances, they contend deaths would undoubtedly decrease. But, there are a fair few folks that die each year from overconsumption of prescription drugs. Death can come from drugs of any quality and supply chain. 

The British Columbia (BC) effort is about a year old. It "allows adults to possess up to 2.5 grams of heroin, fentanyl, cocaine, or methamphetamine without being arrested, charged or having their drugs seized" in most instances. The advocates say that drug use "should be treated as a health matter" and not a criminal one. That is interesting.

Apparently, in BC, there are also people who do not want to have drug-deluded people around them. They want to live in a world of picket fences, and Little Pink Houses (Mellencamp, Uh Huh, Riva 1983). They want to live more in the world of Leave it to Beaver than Fear and Loathing in Las Vegas. That seems a bit conflicting. Can we return to the time of simple neighborhoods, manicured lawns, and idyllic existence? Some say all that Hollywood stuff is pure fiction anyway. 

There are reported instances in BC of "drug paraphernalia found in parks, and of dogs accidentally ingesting opioids found on the ground." The hobby of some is perceived as polluting the living space of others. The reaction has been to decriminalize the use and possession of drugs. This has been on a local level, with the province (state) maintaining its Laissez Faire.

There is, in this, a NIMBY perspective worthy of consideration. That stands for "not in my back yard." There is a far greater propensity for the acceptance of behavior if it is conducted in someone else's backyard. Your support for loud music at 02:00 may be less if it is in your neighborhood than if it is in mine.

Mellencamp captured the NIMBY well in Don't Misunderstand Me (Nothin' Matters and What if it Did?, Riva, 1980):

Everybody can do what they want

But they just can't do it here

The challenge here is simple. There are those who are intent on using drugs. There are others who do not condone or accept the use of drugs. There is at least some connection perceived between drug use and a spectrum of other problems from property crime to "public disorder." There are issues with homelessness, public health, and more. The two sides of this debate are perhaps destined to never find common ground.

The BBC mentions that Oregon decriminalized drugs. I noted that in Heroin and LSD No Longer Illegal? (November 2020). I questioned then whether other states would follow. It appears, instead, that the Oregon legislature has regressed toward the law and order approach.

That news broke on April 1, 2024, on NBC News. After just over 3 years of "anything goes," the Oregonians perhaps return to criminal penalties. Changing the law won't effect change, it may only enable it. Effecting change will require more than the new legislation. Police will have to be willing to make arrests, prosecutors to prosecute, and juries to be willing to convict. It may be that there are no more convictions next year than last. 

The Oregon motivation in 2020 was to use laissez-faire to "quell a deepening addiction and overdose crisis." Let those who want the drugs have them was the solution. But now, in retrospect, there is a sentiment that Oregon was "too progressive." There is a lamentation that "society wasn't ready for" free and unfettered access to chemicals. That one is intriguing. What would "ready" look like?

The Oregonians leveraged their dope in the new 2020 effort. They apparently dumped "hundreds of millions of dollars of marijuana tax revenues" into "treatment" and "harm reduction." According to the news, "that didn't translate into an improved care network." Some will be surprised that pouring money on a problem did not solve it. Others will point to a parade of other issues that have seen massive financial infusions without expected results. 

Cyndi Lauper, years ago, suggested to us that "money changes everything." (She's Just so Unusual, Epic, 1983). Maybe she was right. Maybe not so much. 

For some reason, Oregon experienced a perception of "spikes in overdose deaths" and some perceived "an increase in homelessness." Hundreds of millions of dollars at least didn't change some things. These societal challenges apparently drove the Oregon legislature to recriminalize these drugs. Critics of the legislation are vocal that the decriminalization was not given enough time. Proponents contend that recriminalization will bring better "treatment and care" for those who choose to use these substances.

So, there will be some who proclaim the futility of a war on drugs. Others will note the futility of laissez-faire and unfettered chemical availability. If no drugs and unlimited drugs are not the answer, is there an answer?

Why does the influx of money for care and treatment not eradicate this drug desire? Is it possible that there might be a few people who do not desire either treatment or care? Might there be a portion of our population that is interested only in being high? Could it be that some people are genuinely desirous of simply consuming chemicals? Before anyone becomes too pious, alcohol is certainly a chemical. Some would say that endorphins, dopamine, and others are similarly so. Does it matter if we buy it or make it ourselves?

The problem remains, people are dying. The sentiment remains and is growing, people want chemicals. The discord remains, there is no easy and clear solution. Will British Columbia follow Oregon back to recriminalization, or will Canada persevere on the path of laissez-faire? Will smaller subdivisions, cities and towns, protect their own and thus encourage emigration to the backyards of others? And as that all plays out, will the decriminalization of dope continue to march forward as if that chemical is somehow different from others?

Nothing to See, Move Along

Artificial Intelligence is back in the news, with a state court judge confronted with the admissibility of a "video enhanced by artificial intelligence." It is a criminal case in Washington state, and there is a familiar discussion in the reasoning that led the trial judge to exclude the "enhanced" evidence. The story illustrates that perhaps we already possess tools to evaluate and assess the impacts of AI in the realm of litigation.

I suggested as much previously. See AI is a Tool (October 2023) and A Fool With a Tool (January 2024). The theme there is that AI shares similarities with various evidentiary challenges. It is a new challenge, but not so dissimilar.

NBC News reports that there are issues of interpretation and extrapolation in the use of AI. The resulting video or photograph produced by artificial intelligence is not a mere reflection of a thing, person, or occurrence. The AI product is an interpretation of "what the AI model 'thinks' should be shown." That is, it is an interpretation or translation. The Washington court took issue with that.

There is the obvious challenge with the interpretation. But, in fairness, translation has existed in legal proceedings for generations. It is common for a witness to testify and for that to be filtered through another human being, a "translator." We have seen many challenges with that. Some translators are adept at "word for word" and others are "not so much."

We have all experienced translations that were interpretations in which words and phrases were parsed, paraphrased, and clarified or explained. Instead of a word-for-word "translation," we have seen an extrapolation or explanation. That is perhaps a matter of expediency or may result when there is no exact word or phrase in English.

I have heard translators testify that there is no exact corresponding English. I have heard them describe colloquialisms, slang, and other challenges. There are regionalisms, dialects, and more that may influence how an input is perceived and then what the output (translation) is. Is an AI program so different? Well, perhaps.

The Washington judge was, in some part, critical of the translating, but was also seemingly unimpressed with the foundation for the visual evidence. He criticized the program's "opaque methods to represent what the AI model 'thinks' should be shown." That is not criticism of what is produced or shown, but of the process and how it functions; how well we understand how it functions.

The judge's analysis regards a novel and challenging technology, yes. But the analysis of the court was not novel. It is an analysis that every trial judge has confronted and one for which various evidence codes and rules have already prepared us. The judge weighed the probative value of the evidence against the potential for undue prejudice. That happens daily in trials and hearings across the country.

The Washington court concluded that the AI-enhanced material here had a significant risk of prejudice. In excluding it, the court concluded "admission of this Al-enhanced evidence would lead to a confusion of the issues and a muddling of eyewitness testimony." In short, it was more prejudicial than probative.

In addition, the judge expressed concerns about the foundation. That is explanation of the AI process, tools, and programming. Anyone might question how the AI makes decisions, what alterations or changes it makes, and how those are reflected in the end product. In short, it is not "that" we see Forrest Gump standing next to a long-dead ex-president, but "how" the computer placed, postured, and reflected that image.

The judge concluded that striving to understand that process(es) would perhaps involve forensic testimony and expert testimony. This was characterized as potentially "lead(ing) to a time-consuming trial within a trial." That is a deep dive exchange of evidence about the programming, the methodology, and the process. And yet, that also happens every day in trials and hearings across the country.

Such "trial(s) within a trial(s)" are not novel. In various disputes, there have been such diversions or detours on many occasions. They are necessary whenever a new technology or technique finds its way to litigation. Those hearings are about exploring foundations, assumptions, and innovations. 

They are necessary to probe the foundations in a variety of instances. The entire point of the Daubert analysis is such inquiries and deep dives before evidence is admitted. See Daubert in the Courtroom (August 2019) and Daubert's New Day (May 2019).

This ruling is not about AI, but about foundations. The ruling is about how and whether computers will be used to interpret evidence and to produce "enhanced" or "interpreted" output. The specifics in Washington involve a cellphone video that might establish a "self-defense" avoidance.

The resulting video, however, is not a reflection of the events. It is an interpretation of the events. Prosecutors objected and explained that the results were "predicted images rather than reflect(ions of) the size, shape, edges, and color captured in the original video." Thus, they objected and the judge agreed. It was perhaps important that the software company that was used advocated against the use of its Hollywood tool for litigation purposes.

The result is not novel. To be admissible, a photo or video must accurately reflect the actual circumstance or occurrence. That is foundational. The evidence here did not support that the AI production did that. The evidence suggested that there were parts removed and parts added. The result would be the same if a paper photo was trimmed with scissors and adjusted with a sharpie.

The outcome is the same. Only the means of altering the image is different. The ruling is not about AI. The ruling is about evidence. That happens every day in thousands of rooms coast to coast. Nothing to see here people. Move along.

"A, B, C, D, E, F, G."

Back in the day, remember SARS-CoV-2? We went home for Spring Break 2020 and before it was over the Universities had all told us "STAY AWAY! We did the shift, the pivot, the switch. I went to video for teaching. We went to video for trials. We shifted mediation to telephonic. It was a tumultuous time. I later wrote Little Black Boxes (December 2021) riffing on the old Mellencamp tune Little Pink Houses. I shared some of my perceptions of videos.

There was ample introspection about the pandemic, about remote work. Many found the virtual world challenging and even untenable. Many found it preferable to the real world. The inevitable progression was from the two absolutes to a variety of hybrid combinations, with various cases and proceedings custom-assembled by the parties to meet various preferences and demands. 

I taught through the pandemic, but in all honesty, I was back in person, in the classroom, in the fall of 2020. I believe I am more effective in person than on Zoom. I like the interaction and the feedback. Can I get visual feedback on the video? Maybe. Is your camera on? We saw a lot of students decline to turn on their cameras. That degraded the experience. 

I saw some decline in behavior and preparation. I watched beards grow that spring of 2020. I saw interest and engagement decline. I watched students struggle, and withdraw, and there were indicia of anxiety and worse. The enforced remote environment was not the best. It is fair to say that "one size fits all" rarely is.

That Little Black Boxes post included some predictions for the post-pandemic world. I was skeptical of the predictions of never going anywhere live again. I was right. We are back in person very often now. The mask-wearing has largely worn. The virus has progressed from pandemic to endemic. 

We tried to go back to in-person mediation repeatedly. The lawyers all wanted to remain remote. We accommodated what you wanted. We took the mediation process full-remote. We did this for you and your preferences. But now I hear stories of attorneys appearing for mediation and refusing to turn on their cameras. The mediators are saying that this impedes the process and frustrates communication.

Worse, though I am hoping they are wrong, I am hearing stories in which mediators and judges believe that lawyers are operating vehicles and simultaneously attending Zoom proceedings. That is simply not acceptable. For everyone's safety (you and those around you), please do not try to multitask with a Zoom appearance and driving. It takes your attention from the road. It takes your attention from your client. It is dangerous and lamentable. 

Do not appear on Zoom while driving. Frankly, I prefer you not do so while walking or running (yes, each has occurred). As important, Dress for Zoom like you would to come to a hearing office. Wear your tie, jacket, and yes your pants. For goodness sake, if you don't wear the pants, turn off your video when you step away to grab that document you forgot. And, on the way back PUT ON YOUR PANTS!

Get out of the bed to appear on Zoom. Bring your file with you for the proceeding on Zoom. Remain conscious of the appearance of your surroundings when on Zoom. Alert others in your premises that you are on Zoom and that the camera can easily catch them also (be aware of what is behind you). 

We want your camera on. Everyone? No, if that claimant or adjuster wants to remain in the background, we can likely live with that. That is up to the judge or mediator. But the lawyers should each and all be professional. That means dressed, coiffed, and prepared. Meet the client before. Discuss the claims and defenses before. Outline the issues before. And turn on the camera. 

Why turn on the camera? Well, as Gayle notes in her mis-ordered alphabet song,

And I was tryin' to be nice

But nothing's getting through, so let me spell it out

Or as Leah Kate might suggest instead, "I made a list so I'll never forget all the things I hate about" little black boxes on the screen. 

1. The mediator is working diligently, on screen, to engage in an interactive and productive conversation. Your "black box" is disrespectful to her/him.
2. The claimant has one case, this case, and is at the mediation to discuss and share. Your "black box" is disrespectful to them.
3. The employer may have many cases, or perhaps just this one. She/he is there to discuss and share. Your "black box" is disrespectful to them.
4. Your opening comment of "I'm _______, I'm your lawyer" does not make that client feel valued. It disrespects the client, the process, and the claims.
5. Your excuse that you are "not well," or "not dressed" or "not shaven," or have "no makeup" is not doubted. But your lack of preparedness is disrespectful to all.
6. Your request that a judge or mediator wait while you finish another call or Zoom indicates that you are either underprepared or overcommitted. Either is a demonstration of lack of respect (absent true emergency, if the hospital calls, your kid calls, etc. take the call, we'll all wait - been there, done that).
7. You beginning the Zoom hearing with "Judge if we could have a minute, I think we can work this out" is disrespectful. If a short conversation could mean no need for a hearing or mediation, please have one. But do it before.
8. Your tardiness (one reported instance was an hour delay, parked on Zoom, while various attempts proceeded to find one of the lawyers. Wasted time and disrespectful. 
9. Disrespectful, unprofessional, and inappropriate. In some instances worse. 

I would perhaps fix the poor alphabet lady's (Gayle's) lyrics, and instead sing "A, B, C, D, E, F, G."

G.

1. "Gee, that was an organized and efficient mediation/hearing."
2. "Gee, I was impressed with attorney ____________"
3. "Gee, that was productive."
4. "Gee, that was professional."
5. "Gee, that was exceptional."
6. "Gee, what a pleasure to work with."
7. "Gee, what a great argument."

We do not need anyone hurt. Park the car. We do not need anyone disrespected. Meet the client before. Discuss before. Treat the case with the dignity it deserves. Turn on the camera, be present for this hearing, this mediation, this task instead of working on three other things at once. 

You think you are multi-tasking, but you are not. You have four simultaneous projects and you are sequentially ignoring each one momentarily to focus on another. You are not in the moment. You are not solving the present challenge. And you are being disrespectful (to the mediator or judge, your client, the other attorney(s), and the other party(ies)). 

Some suggest that the rules should be amended to require cameras turned on by all attorneys. It is disappointing that we may need a rule that says "be a professional." Perhaps we do? "A, B, C, D, E, F, G."

Gee, that is a real shame on and for all of us. 

More is Better?

There was a great hue and cry in recent years about "steps." I came across it at a national conference when I observed someone wearing a wristband step counter. I inquired, and the response was, "Ten thousand steps a day, gotta have 'em," I was impressed by the number and asked about the reason for it. The answer was two parts elusive, mixed with one part ambiguous, and stirred carefully with a reference to "a study."

I got to looking into that later. It turns out that the 10,000 was a marketing tool for a Japanese company. They liked the name they had for their step counter, which translated to "10,000 step meter," according to the folks at Harvard Health (there is no indication where they copied it from, so it might be their own work). That's right, folks, the 10,000 steps might have been simply made up. That is challenging. Usually, we think science is about facts, hypotheses, tests, replication, confirmation, etc., etc.

In 2022, Inc. noted, "scientists finally did a study." Yes, after years of advice regarding 10,000 steps, the scientists actually gathered some data. The article notes the dearth of prior science. It cited a JAMA article recounting data gathered by following individuals and counting steps. The results were that people who exercise are healthier. This is neither science nor surprising. The study found nothing "particularly special about 10,000 steps." In fact, the experts there concluded: "7,000 steps seemed to be an important inflection point."

Back in 2022, I concluded that some is better than none and more is better than less (as to exercises, the whole second part of that analysis falls apart when applied to pizza, although it remains that some is better than none). The whole analysis falls apart with a whole slew of things like viral exposure (none is better than some, you get the point). See Exercise is Good (October 2022).

Despite this, some doubled down. The University of Kansas noted in 2022, "10,000 steps might really be the ‘magic pill’ everyone is seeking." There is no indication that Kansas shares Harvard's acceptance of plagiarism, so it is likely it arrived at its conclusion independently. The University of Kansas actually cited data (thank you, Mr. Deming) from a JAMA Neurology article that concluded 9,800 steps had been "linked to less dementia and less cardiovascular disease overall, with less heart disease, less heart failure, and fewer strokes. "

Notably, the University of Kansas says that less exercise was also helpful, not as helpful, but helpful. It seemingly agreed with the "some is better than none" hypothesis I voiced earlier that year. Nonetheless, they did not cite my October blog post of that year? In fairness, I don't have a big Kansas following.

The story seemingly won't go away. Scientific American expounded in 2023. Newsweek picked up the steps debate in 2024. Newsweek essentially said exercise is good. It concluded "at least 3,967 steps a day" was a good threshold, but reiterated the 8,900 from 2019. It also recommended incrementalism, adding a few steps to increase over time.

More recently, Yahoo weighed in (sorry, couldn't help myself). It says that obesity is increasing (who knew?) There is a discussion of risk factors for being fat, and another JAMA article urging activity. This JAMA effort measured "rates of obesity" in people who walked a significant amount (8,236 steps per day). If you don't count steps, know that is over three miles.

This recent study supports that there are "genetic risks of developing obesity." If you have those genetic risks, then more steps are needed. They seemingly conclude that those folks need to increase by 2,280 "for a total of 11,020 steps per day." Yes, if you are facing an uphill genetic battle, you will need more exercise to counteract it. That is blatantly logical. As your BMI increases, your volume of steps must also increase in order to be effective in controlling or reversing weight.

This can reach the absurd. The study reportedly says some people need "more than 14,500 daily steps." That is, in scientific terms, "a lot." That is more than 5 miles per day. For a long time, I did 10,000 steps before breakfast daily. Yes, you will lose weight. Yes, you will feel better. Yes, you will spend a lot of time walking. Yes, you may have to give up other things like TV shows, books, etc. Hint - find someone you enjoy walking with.

The folks at Yahoo address the reality and rationality of the "14,500 steps a day." There is a concession that such a volume is challenging. There are a variety of ideas presented, and an admission that "obesity is a complex disease." That is challenging in itself. I am not convinced obesity is a disease, but I am comfortable that it can be caused by various diseases and by genetics, and by no means are all causes demonstrated or known.

All these studies. All the money for all these studies. The answer (I am not a medical doctor, nutritionist, or scientist, but I did recently walk off over 60 pounds) is to do more. It does not really matter how many steps you take today. Just take two more tomorrow (one more headed away from your house and that adds one more headed back home). The fact is, 14,500 is a big ask. But one? You can walk to the corner today. Tomorow? One more step.

If you add one step a day for a year, you could be a long way from home! But it will happen one step at a time. At the end of a year, you could be up to 730 steps/day. At the end of two years, over 1,400 steps. It will take a few years at that rate of increase, but you will undoubtedly and measurably improve. If you feel up to it, increase by two steps a day. 

And, it is always best to consult your medical doctor before starting any exercise program. But the first step is deciding you care enough about yourself to drive down your risks for cancer, diabetes, depression, cardiovascular disease, and death. In addition, your chances of developing dementia will also decrease. Sure, more is better. But, really, remember some is good. 

It's a Mystery

There is a fair bit being written about the "next generation." 

The "lost generation" (1883-1910; 114+) is passed, the "greatest generation" (1901-1927; 97+) is dramatically shrinking. The "silent generation" (1928-1945; 80-96) is rapidly aging out of active societal participation, but perhaps retains some potential to mentor and influence. 

Now comes the decline of the once mighty "baby boomer generation (1946-1964; 60-78). The oldest "boomers are in their late 70s and the youngest are on their final approach for retirement. These are the old guys like Rafael Gonzalez who has "been there, done that," but may have a few years left in the tank. They may not have their gears down, and they may not be fully lined up on the field, but most of them can see their destination landing strip.

I was in Miami and West Palm Beach last week. It was an intriguing trip from various perspectives. Some new experiences, and fresh faces. And there were a great many familiar folks in the audiences. In a nutshell, it was fantastic to see people in person. It was encouraging to meet and converse with young lawyers. Back to the "next generation."

"Generation X" (1965-1979) is reasonably engaged today. These folks are 45-59, and in large part are now running things. They have quietly assumed the mantra of management, responsibility, and ownership. They are reasonably cordial to the old "boomer" folks, but they do have some different thoughts. That said, they are closer to the "Boomers" and their habits than they like to think.

They are followed by the "millennial generation" (1980-2000). Those folks range from mid 20's to mid 40s. The Millennials are the largest group of workers in the American workforce. They are perceived by some as "unique" and others as "unprecedented." In truth, they are merely different, just as each successive generation has been, always, forever. They are the children of the 1980s in large part, steeped in the begining of the "me" mentality. The 1980s largely brought us acceptance and even celebration of narcissism ("extermely self-involved.")  

And the "next generation," labeled by the so-called experts as the "new silent generation" or "generation Z." These folks were born into a world of wonders. They do not recall a great many things we old folks found innovative and wonderous, but today are curious and antiquated (dot-matrix printers, floppy discs, and more). 

The "next gen" stands on the shoulders of the prior generations and reap the benefits of innovations and ingenuity past. Before you are too hard on them, we have all done so with our individual and generational comings of age and torch passing. They too will come to realize, in time, that we are all both blessed and cursed by our predecessors. 

Without exception, every generation has uttered the dreaded "these kids today." There is a universality to the lamentation of whatever any "next generation" faces. You need not believe me on this, just stick around a bit and you will witness it yourself. Remember Carly Simon?

"I know nothing stays the same

But if you're willing to play the game

It's coming around again"

(Arista 1987). Are you "willing to play the game?" The 20-somethings of today will soon enough be sitting in a rocker on the front porch screaming "you kids get off my lawn," and lamenting "these kids today." The die is cast, the cycle inescapable, the irony thick. 

Thick as the irony is, it can only be lived forward and yet only appreciated in retrospect. The "next gen" are on the same roller coaster ride I just got off of, but they are convinced their ride is unique and unprecedented. They are mistaken, but no more naive than I was when I got on a few months back.

There is a wonder in the world of today. People walk around with 24/7 (near) uninterrupted access to a vast assortment of human knowledge. Back in my day, we lamented having to learn mathematics and memorizing historical dates. I vividly recall the "how will I use this," and "why can't we use our calculators?" Yes, they were calculators, not abaci. I remember teachers expressing their beliefs about knowledge, learning, and education. They had a perspective, and it did not necessarily gel with ours. There was friction. 

I recall comments like "you may not always have a calculator," and "knowing dates brings you perspective." I didn't buy a lot of that then, but over the years I have come to appreciate some of it (retrospect). 

In college, I spent an entire semester learning how to long-hand calculate various averages, deviations, and related formulae. I can do the same math today with almost any spreadsheet program in a few moments. When I forget how, my good friends Google, Edge, and Firefox are ready advisers. Remember Paul Simon?

"When I think back, On all the crap I learned in high school

It’s a wonder, I can think at all"

(Columbia 1973). He was singing about film. Kodachrome film. Half the people reading this will need an internet search to grasp what that is, and why it was important. Why recordations in living color, bright, vibrant color mattered (matters?)("everything looks worse in black and white").  

I am promised that my computer will continue to improve. The software will become increasingly pervasive and interactive and even prescient. I am promised a robot to do my bidding and make my life easier. I am promised self-driving cars, smart appliances, and more. I am promised a never-ending parade of intervention with and substitution for "me," such that my skills, knowledge, and experiences will become increasingly a redundancy and obscurity. In what will I find self-actualization, some video game?

I have recognized my coming obsolescence. To an extent, I have accepted it. I am confident that there soon comes a "next generation" that will be capable, effective, and successful, whatever that means for them. But, I am often given pause.

The New York Times published "A Crisis of School Absences" recently. The main point is that school absences increased during COVID-19 (28% chronic absence). There is no surprise there. What is troubling is that the rates have not returned to pre-COVID (15% chronic absence) in the years since. The "chronic absence" means "missing 18 days of the school year for any reason." That is almost four  weeks. That is a troubling trend. Is anyone else troubled that 15% is (or ever was) accepted as "normal?"

Those who study such things are troubled that "absenteeism has increased across demographic groups." This is a biased and prejudiced statement that borders on revolting. Why is the trend more disturbing because it is more widespread? Why was it not just as disturbing in any, isolated, demographic? Is it me? ("you kid's get off my lawn!"). Why is absenteeism spreading, increasing? It's a mystery ("no its not").

There is direct educational impact. But, the article also notes that the "absenteeism means less stability about...friends and classmates." There is an element of school attendance that is social in nature (who knew?). The desire to attend, to engage, and to interact plays a role in attendance. Social contact matters? And today, we are all acutely aware that some measure of the next generation is struggling with social interaction beyond the digital device.  

I heard an old lawyer lament on this trip "kids today have no idea how to ask a girl out." I did not have the heart to remind him that no guy in the history of the world ever "knew" how to ask a girl out. That is why every guy has struggled and failed in the effort (you want a mystery? that's the real one). But, there was usually some growth in those failures. Trust me, young folks, your struggles are not new, special, or different. You will fail. You will fall. Get up and go again. You have every advantage we old folks had and the challenges you face are surmountable. 

The Times concludes that this social involvement deficit is a societal challenge. It notes the trend toward virtual work and says that "anyone who works in an office with a flexible remote-work policy" is seeing discontent with employees who are not present. There is some envy, some angst, and a melange of other emotions. As the author puts it, "you diligently show up, but your coworkers aren't there. What's the point?" 

The suggestion is that such emotions on attendance are affecting students also. So, lets grasp that. Let's return to an age that included "recess." Perhaps let's bring back our appreciation for band and chorus classes. Let's admit there is room in society for those who do not desire or need a college education to be perfectly content and productive members of society. You are not going to program a computer to repair my plumbing, fix my A/C, or a bevy of other skilled and necessary tasks. 

Perhaps there is a feeling centered on what school delivers. Is there a relevance and importance to what is being taught? Does the "next generation" feel that they will put this information to good use one day in managing their robots, understanding their artificial intelligence overlords, or otherwise surviving (thriving?) in the world they have inherited? If not, whose fault is that? Yes, Virginia, it is ours.

The world of tomorrow is not mine. I am fine with that. I have the field in sight, my descent profile is solid. Speed, altitude, and conditions are all nominal. I can make the landing from here. The moment of dropping the flaps and putting down the gear are approaching. I'm not ready, but I know what is coming. And there is a vast population that will need to thrive tomorrow. They will need leaders, workers, managers, products, services, medical care, and more. Those will not be me. 

The American education system needs to find relevance and deliver value. It is time to quit cramming algebra down the throats of those who won't use it and bring back the shop classes that provided foundational and appropriate education to a multitude of people we all benefit from daily. 

School needs to teach relevant skills and knowledge. Families need to provide guidance, nurturing, and perspective. The "next generation" needs to appreciate the history upon whose shoulders they stand and yet find the motivation, inspiration, and intellect to plot their course to success. Their success. We can facilitate. We can support. We can even provide them the benefit of our retrospection. 

They will largely ignore it, just as we ignored our parents and as they ignored their parents before them. No old fogey ever knew anything. But, though I patiently listened and ignored at the time, a great many lessons of the "greatest" and the "silent" I knew have returned to me over the years. In retrospect, they patiently taught me so much for which I am eternally grateful. I wish I had been smart enough to engage their knowledge and advice sooner. 

In short, the "next generation" needs to define "success." They need to be able to think about what their beliefs, values, and inspirations are. But that must be tempered with the realization that we old folks have made a bevy of mistakes, missteps, and blunders. They have to know that history is a hard teacher, but it is of immense and immeasurable value. Some of us who lived through it, and learned from it, might provide a parade of good advice and avoidance.

The time has come for them. This is their day, your day. You will not solve all the world's problems, but your failure in that is universally shared by every generation that precedes you. Make your way, find your path, and feel free to invite us along for consultation, perspective, or suggestion. No one in the world is more interested in your success and progress than we old folks. 

In the meantime, "get off of my lawn," "get a haircut," and for goodness sake "turn down that terrible noise you call music." 

 

Sometimes an Angel

All skill is in vain, under certain circumstances. 

There was a humorous homily that led with "all skill is in vain" and implicated an "angel." Back in the days when no one had a printer or copier at home (a long time ago), we used to use stores that sold photocopy services. Seriously, we did not have printers, copiers, computers. It was an analog world. 

Those printers would put pithy sayings on various colored papers, with their logo and phone number, and you could pick them up for free. It was good for laughs before there was email, social media, and the like. Yes, we actually handed funny stuff to each other on paper. Before you young folks think too critically of me, it was not even that long ago, in the 1970s, and even 1980s. 

The "skill" saying came to mind as I watched the Dali careen into the Francis Scott Key bridge in Baltimore. On top of my sense of recollection (I’ve driven that bridge many times), my immediate reaction was for the motorists. 

The ship personnel did not immediately come to mind, they were likely riding well aft of the collision.  I had no premonition that there would be a maintenance crew fixing potholes on the bridge. The most likely victims, it seemed in that moment, would be the drivers. 

The news soon broke that the ship made a radio call when it knew it was in trouble. That has been called a "mayday." In a technical sense, a "mayday" is sent in order to summon help. It is a way for a ship or plane to seek help. But in this case, it was a warning to public officials about the impending impact. 

The Washington Post reports that "mayday" led officials to stop vehicle traffic. Someone(s) thought quickly, stopped traffic, and saved lives. They did not have hours to plan, discuss, and deploy. In a matter of minutes, someone(s) lept to action and they averted a significantly worse outcome. I hope someone gets a pat on the back.

Since the event every news organization in the world has sought material or perspectives. There is only so much click traffic you can expect from the same repetitive headline about the bridge collapsing. There have been interviews with harbor pilots, engineers, public safety experts and more. 

Some of that is appropriate news gathering, and some of it is simply clickbait. You be the judge. I have been critical of clickbait periodically. Anyone who wants to shut down the flow of disinformation in this world, or the harassment of various people, should just say "no" to clickbait. If you stop clicking, they will stop publishing (eventually). 

Pilots - where were the pilots? There were two, according to CBS. Each harbor in the world employs pilots. They are the "local experts." They are doing the driving in the harbor. They know the currents, the channels, and the challenges. The captain of a ship might steer through Baltimore harbor once in a blue moon, but the local pilots do it every day.

So how could this happen with the experts on board? There was a power failure. Business Insider says that Dali had a capacity of 95,000 tons. One ton is 2,000 pounds. Think of an object that weighs 190 million pounds. It would take an awful lot of force to make that move. And, from our familiarity with Newton, it would take a lot of friction to make it stop again. The pilots did not cause the collision, and having a dozen more on board would not have avoided it. 

Fenders - could the government have built fenders around the support columns to stop or deflect a force like the Dali? The answer is absolutely yes. But, that answer is only to the specific question, "could they build them." The larger question is "would it have helped. See above re 190 millions pound projectile. What structure would effectively stop such force in motion?

CNN refers to the Dali and ships like it as "massive." Yeah, and LeBron James is a "good" ball player, Taylor Swift is "successful," and pizza is "tasty." Massive does not capture it. CNN quotes an expert who says "No bridge, unless a fortress is built around it, could survive such an impact,”

Speed - speed kills. We have all heard that a million times. What vehicular accident news fails to mention that? Every police official in every jurisdiction will note speed. They will reference it in absolute ("too fast") and relational ("for the conditions"). It is a persistent concern. 

CBS reports that the Dali was traveling 9 miles per hour. Nine. Humans walk at about 3 miles per hour. Usain Bolt sprints at about 27 miles per hour. You drive your car down the interstate at 70 miles per hour. Speed?  The boat was moving at 9 miles per hour. And, as several "experts" have opined, "boats have no brakes." No, speed was not a factor in this collision. 

Age - our infrastructure is aging. There have been some expert interviews about our "aging infrastructure." A few have mentioned that the Francis Scott Key bridge was designed in an era before these "superships." Some see a challenge, and some suggest a different or more conscious design in its replacement. Admittedly, the bridge was old (1977), built in the days of passing around jokes from print stores.

USA Today aptly concludes that this is an outcome of force in motion (Newton), not of age, maintenance, or design. It concludes "it’s unlikely Baltimore’s bridge stood a chance against the ...Dali despite the quality of its build." That there is discussion of infrastructure is interesting, but it is not an issue. 

Amid the aftermath, many will continue to conjecture, discuss, and perhaps they will place blame. But it is important to reach beyond that and figure out how the recovery will proceed. The shipping channel has to be cleared and the ship traffic restored. While there is disagreement as to the pervasive nature and reach of the economic impact, there will be impact. 

Beyond the impact on shipping, port jobs, and the "ripples" of economic activity that emanate from such an economic engine, there is the local impact. Bridges have been broken before. We had a much less significant event in Paradise a few years ago. No container ship, no dramatic video, But even a small hole in a bridge can render it reasonably useless. And it turns out a lot of people rely on bridges. See If you were Half the Bridge I am (June 2021). 

What can we learn from this event? The primary lesson is that sometimes all skill is in vain. Perhaps there will be some conclusion as to what could have been "different" or "better," but today it appears that reasonable minds and practices combined for a tragic result. People died; that is not to be minimized. Many more could have died though, but the ship was moving reasonably slow, it was staffed with local experts, and when things went wrong a warning was sent. 

In the end, it seems that we might learn a better practice or an improvement. No process is perfect, and the investigation has only just begun. But we should also likely acknowledge that this does not happen every day. Ships enter and leave harbors every day, by the thousands. The practices employed are working in ports everywhere, every day. There are tragedies, but rarely. As they analyze, hopefully, there will be a focus on all the people who did things right, and their heroism. 

Three Shootings - compensability

Three shootings. Three examples. An opportunity to discuss the interaction of "arising out of "and the parallel requirement of "course and scope." Too often, there is confusion between these two distinct tests. The confusion is due in large part to poor appellate analysis and intermingling. The three examples for this conversation today include the instance in New Mexico in which actor and producer Alec Baldwin stands accused. See Workplace Gun Safety (August 2022). Today, I address recent instances in the case law and news.

We begin here in Florida with last August's Normandy Ins. Co. v. Bouayad, 372 So. 3d 671, 674 (Fla. 1st DCA 2023). The injured worker there was "shot seven times" while at work. The shooter was not identified, and the trial judge concluded the shooting did "arise out of" and "awarded benefits." The analysis was largely based on a "situational risk" analysis. The trial judge considered the propensity for violence in a particular neighborhood, and the crime rate generally.

The trial judge "concluded that Bouayad's employment substantially contributed to the risk of an attack and to risks that Bouayad would not normally be exposed to during his nonemployment life." The opinion does not state what the crime rates were in the other areas of town that Bouyad frequented (living, shopping, etc.) and how the rates in those "unemployment life" activities compared to the work site. In all, it was an intriguing analysis.

The appellate court reversed. It explained that "the claimant must 'make a showing of some event or circumstances connected with his work to which his injury can be directly attributed.'” The court acknowledged and explained the "any exertion" standard in single-cause injuries, and concluded "it is unreasonable to suggest that the mundane exertion of walking to get around work can be 'causally connected' with an injury from a shooting."

The appellate court concluded, "Chapter 440 does not cover workplace injuries; it covers work-caused injuries." There must be some demonstrable relationship between the work and the injury. Where Mr. Bouayad failed was in not showing that relationship. He proved he was at work, that work was located in an area with a propensity for issues, but not the causation of injury from work. It is critical that there was no dispute about course and scope (the worker was at work and working), that was conceded.

More recently, Federal Express (FedEx) appealed a conclusion of compensability of a shooting at work in the Commonwealth of Kentucky. Figaroa v. Federal Express, CLAIM NO. 202149967, This arose from a road rage incident, but it occurred in the parking lot of the workers' apartment residence. No one disputed that the individual was an employee, that he was in a company truck, and that he was shot. These are stipulated. But, the employer nominally contested the "arising out of."

The employer asserted the worker was not "at work" at the time, but was in the process of "going and coming." That is a "course and scope" argument. It also asserted that the worker was "on his break" at the time, also "course and scope." The worker was sitting in his employer's vehicle when he was shot. Despite the two "course and scope" defenses, the employer disputed any "a causal connection between any work events and the medical condition that is the subject of the claim." That last one is an "arising out of" argument; that is, the relationship of injury to occupation.

The employer later asserted that the worker "was engaged in horseplay at the time of the incident, and therefore his claim is barred." That argument is one that says, essentially, that the "course and scope" was abandoned, the work abandoned in favor of some distraction. This can happen when an employee deviates so thoroughly from the purpose of work that her or his actions cannot be said to be in furtherance of the employment purpose. In this, the employer alleged that the worker "escalated the confrontation" and thus departed from course and scope.

Many appellate courts have been reluctant to conclude that horseplay is sufficient to break the "course and scope" barrier. Time and again, there have been conclusions that an employer failed to keep labor actively engaged and thus afforded the boredom that precipitated horseplay. Or, that an employer failed to discipline horseplay and thus created some acceptance or acquiescence of such behavior. Those arguments have been strained at times. 

The Figaroa employer's arguments centered on it providing a "one-hour unpaid break each night." Using a digital tool, "drivers logged in and out of breaks." Although the company forbade breaks away from a driver's assigned route, the employer had acquiesced in this worker "go(ing) home for his breaks." After the shooting, the delivery vehicle was photographed parked at the worker's home. The worker had left the vehicle. He was confronted, retreated to the vehicle, and was shot. He had not logged out through his electronic device. 

Though "arising out of" was seemingly only obliquely denied, the ALJ addressed the point. She concluded that the confrontation occurred due to the operation of the delivery van. It was a "road rage" incident, and thus the work of van driving precipitated the altercation. This is distinct from Bouayad in which there was no such work event, confrontation, argument, robbery, or similar described or demonstrated. 

The remainder of the Figeroa analysis addresses the "going and coming" and other "course and scope" arguments, denying each. In these, there was periodic mention of "arising out of," with the employer arguing that "going and coming" is a defense to both of the two: "arising out of" and "course and scope of." While that seems inartful at best, there are numerous appellate interpretations across the country that both mention and even rely on such an interpretation. In short, many courts have mixed the two defenses.

In Figaroa, the employer seemingly makes the inverse argument to Bouayad. In Bouayad, the worker argued positional risk (at work, so must be work). In Figaroa, the employer argued the same doctrine (at home, so must not be work). That "positional risk" did not work in either instance. The location, alone, did not carry the day in either analysis. That is instructive.

The Kentucky Board noted the Figaroa facts "are simple." The worker was doing his job and deviated to return home for an unpaid break. This was a condoned departure from course and scope. In parking, he upset a fellow traveler who confronted, pursued, and shot the worker. The worker had not clocked out, and had not "actually initiated his break." He was, in short, at work, working, and that work precipitated the attack from another. 

The final shooting incident involves actor Alec Baldwin pointing a gun at a coworker, under the apparent mistaken belief that the tool was not loaded. He claims that he did not squeeze the trigger, but there are allegations that the weapon could not have discharged without such a trigger squeeze. The end result is one coworker dead and another significantly wounded.

In this, we see an employee (Baldwin) clearly in the "course and scope." He was rehearsing a scene for a movie, the entire crew was present for that movie making purpose. He pointed the tool as called upon in the script, and somehow that tool discharged. The individuals struck were behind the camera. They were privy to the script and knew the tool would be pointed. They were both also in the "course and scope." There is no fact known at this time that would suggest that the shot was not in the "course and scope."

That said, there may have been failings. Should the employer have somehow shielded the victims behind a barricade? Should the gun have been inspected before it was pointed? Should there have ever been live ammunition on a movie set? Those are all possible arguments about the liability of the employer (which coincidentally may also include Mr. Baldwin as a producer of the movie). But, none of those arguments raise a compensability defense against the individuals shot, should they claim workers' compensation.

The two who were shot were doing their jobs behind the camera. They were not deviating from the "course and scope" in some way or abandoning the purpose of their employment. But did the shooting "arise out of" the employment? That question returns to the presence of live ammunition. Was there ever any arguable need or excuse for the presence of live ammunition? Was the presence of that ammunition beyond the employment, and thus supporting that the shooting arose from criminality or gross neglect rather than the making of a movie?

In that, it is possible that an injured person (or an estate) might seek to avoid the application of workers' compensation. The injured person might strive to prove that the injury should not be constrained by such a system, and thus the employer not protected by exclusive remedy. It surprises many, but sometimes an employee seeks to avoid workers' compensation and seek civil damages instead. The arguments for that, of gross negligence or similar, are likely to focus on the same "course and scope" and "arising out of" analyses.