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Another OJCC winter seminar is behind us. Over one hundred lawyers, risk professionals, and more gathered at the Florida First District Court last week for a series of panel discussions focused upon the challenges of moving a case through the Florida litigation process. Titled Sharpening and Adding to the Tools in Your Trial Toolbox, this afforded insight into the process and the perceptions of those who participate within it. Friday was an exceptional opportunity for personal growth and education.
Some perceived or misperceived that one of the judges suggested attorneys should "sandbag" or hold out on the opposition in a case. That was not the intent of that comment. Fortunately, various other presenters returned to this point throughout the day and hopefully tempered that unfortunate perception, which I am sure was not intended. Certainly, it is the attorney's and party's obligation to respond to discovery, to be forthcoming, and to strive for the resolution of issues and claims. It is not appropriate or professional to withhold evidence or to strive to surprise an opponent at trial.
From the panel discussion of the pre-petition process, petitions, responses, and discovery, we gained significant insight into the potential for challenges. The communication and careful preparation in that time period has a fundamental and imperative impact on the probable course of the litigation. The early days, the gathering of information, and careful communication can set the stage for all that follows. The one point that I would have been more emphatic upon is the simple note of Rule 60Q6.115 - the motion is our best tool for seeking judicial intervention in a case.
The mediation panel was interesting and at moments humorous. It is always fortunate when presentations include some moments of levity and that also adds to the probability of retaining information for later use. There was one joke that some perceived as a bit off-color regarding man and wife or woman and husband. There was no intention to offend or to cause discomfort with that reference, and I apologize to any that were troubled by that reference.
Despite that unfortunate illustration, the message intended was valuable. We make mistakes in the process of conciliation and compromise when we use inflammatory invective. The point of a dispute can be aptly conveyed and strengths and weaknesses addressed without insult, accusation, and offense. When the listener is offended, it may be hard to move them toward compromise and agreement. When the listener is offended by your analogy, they may discount your point or even stop listening.
The panel addressing pretrial stipulations and trial memoranda was focused on its advocacy regarding the importance of these two documents. It supported some of the earlier panel conclusions and assertions. Of particular note, there is a strong potential that these two documents will be all that your judge has read prior to trial. These are an opportunity to tell your story, prepare the judge for your evidence, and to be effective litigators.
Among the more pertinent points regarding pretrials was the advice to start the process early. There was advice to be focused on this form informally even in the initial review of the case or intake of the client. The witnesses, the critical facts, and the documents that will likely be important to disclose may well be apparent at those early stages. Building the disclosure as the information is gleaned will prepare for that ultimate disclosure in a busy practice.
There is a concept with the trial memoranda that I refer to in teaching college as the "baby bear" paradigm. Any trial memoranda may be "too hard" or "too long," just as the porridge may be "too hot" or "too cold." The critical point is to convey what is important in the case so that the judge is prepared to hear the case. The trial memoranda should be "just right," and what that means depends on the case. But, adjectives to consider are "complete," "thorough," "succinct," "organized," and "informative." There are perceptions that the memo is not always effectively engaged to full advantage.
The reality of the twenty-first century was one of the critical points of the "workers' compensation trial." Technology is upon us and it impacts our preparation for litigation through video depositions, less interpersonal interaction overall, and the potential for remote hearings. The three judges on this panel provided insight into some of the challenges that are probable in such settings, while also recognizing that video is not an eventuality.
Today, lawyers and parties must be aware of the potential for live trials, video trials, and the "hybrid" that lies in between. Each has its own challenges and possible tribulations. Some critical points included communication between the parties in preparation, not losing sight of the potential for technology shortcomings or failures, and patience. The key message that seemed to recur was one of cooperation and communication between all involved.
The appellate panel was enlightening and entertaining. There was the reiteration of much that lawyers knew or suspected. But, there were also some critical thoughts that every system participant should really ponder. Of particular note, is the criticality of a motion for rehearing. In this era, it is very important to seek rehearing so that claimed errors may be considered by the JCC. Failing to file for rehearing may be fatal to the appeal. And, appellate counsel should be engaged in preparing for that process. The appeal decision should likely be part of the first reading of a trial order; time is limited.
Another imperative point of this panel was the challenge of determining what is or is not a final order. This included the necessary language to include in a non-final order that may nonetheless allow appellate review. There remains doubt regarding finality in some settings, and careful counsel would be well advised to understand both the challenges of defining "final" and the tips for handling doubt or uncertainty in that regard.
The day concluded with professionalism. That topic is a recurring theme in workers' compensation. In 2022-23, it has been a recurring theme as we discuss many aspects of this challenging practice. The panel was outstanding, and unfortunately, a fair number of folks opted instead for an early departure. Of course, avoidance of Friday afternoon traffic and long distances home contribute to that. But, they really missed a great discussion.
The Florida Bar Center for Professionalism provided some insight into the challenges that we all face. The truth is that the litigation process is often lonely, stressful, and personally challenging. That was, of course, not news to anyone in the room. However, it was a poignant reminder of why professionalism can be hard. The panel brought together some of the points that had been made throughout the day as regards our challenges, the nature of litigation, and our involvement.
The greatest challenge facing workers' compensation litigation is likely professionalism. We are in an increasingly connected world that is anachronistically less and less personal. Though communication is easier, our connections to one another are perhaps harder. This is impacting us personally and professionally. This reminder was important, and the panel's perspective brought an ideal close to the long day of discussions.
A small contingent remained for the courthouse tours and the balcony reception. There were opportunities for reflection on the outstanding presentations, and for sharing perspectives. The day was a sound investment in two critical ways: knowledge and collegiality. As important as the education was, the in-person gathering, conversating, and reconnecting were equally compelling.
I am grateful to the many that took the time to engage with us, and to be a part of this community. I am particularly grateful for Judge Moneyham's labor and organization in planning and producing this outstanding program. And, a hearty thank you to the many speakers who prepared these topics, provided insight, and answered difficult questions. Those speakers moved the proverbial ball and delivered tools, tips, and knowledge. Finally, we are very grateful to the First District for its persistent support, its outstanding facility, and the participation of its judges.
The preparations for 2024 will soon begin. If you have topic or speaker suggestions, you may email david.langham@doah.state.fl.us or call at your convenience. If you have questions or comments regarding the program, I am at your disposal.
By Judge David Langham
Courtesy of Florida Workers Comp
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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