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The "donut hole" has been used over the years to describe or illustrate a great many situations. My favorite is where the element of dough is excised from the main element, creating a hole in that main element, and then the excised portion is separately cooked and doused in some sugary concoction. Sure, it tastes no better than the donut itself (the main element), but there is something exceedingly attractive about the bite-sized delicacy that is colloquially the "donut hole."
But, the term has also been used to describe a "gap in coverage" with Medicare. Enid News and Eagle. It has been used to express a perceived inadequacy or incompetency as regards Football by Steelers Depot. Think Advisor uses the term to discuss Social Security. The term has come to represent a "gap" or "space." And, there are more than a few who perceive some donut holes in the practice of law. Though there is some generalized application of the term here, there are specific concerns expressed about Florida workers' compensation.
There are those who perceive the Florida Legislature's changes of 2003 as disincentivizing litigation of workers' compensation issues. They point to the 2003 "end" of hourly attorney fees, though this ignores the persistence of section 440.34(7) hourly fees within a specific constraint. With that statute change, some perceive less motivation to litigate. Critics of this perception insist that lawyers are unmotivated and unswayed by monetary reward and pursue justice for justice's sake.
The former, perceive that the 2003 law changes resulted in less litigation and a greater propensity toward settlement. They may, in their haste or simplicity, forget that an earlier revision in 2001 had made significant changes in the settlement process writ large and thus simplified the process. It is entirely probable that those changes produced some degree of settlement preferences or proclivities. Florida's history demonstrates an intriguing progression in terms of perceptions regarding settlement.
In the end, however, there was a perception that workers' compensation practice in the twenty-first century became more about settlement. This contravened a perception in the twentieth century that workers' compensation was a practice in which litigation and lawyering were endemic. It was a practice to which young lawyers were often drawn by opportunities to try cases, independently manage discovery, and otherwise glean significant experience. Some perceive those opportunities diminishing in the early twenty-first century. Thus, they perceive a decreased attraction to the practice.
After the Supreme Court's intriguing analysis in Castellanos (See Castellanos Decided by the Supreme Court, April 2016), there were those that anticipated an increase in litigation. Some prognosticators believed that litigation would precipitously increase and there was anticipation and, in some quarters, anxiety. There was a proposal for an increase in workers' compensation premiums in the expectation of litigation, and perhaps uncertainty. See Attorney Sues NCCI (August 2016). Some perceived that there had been a drought in young-lawyer hiring in workers' compensation and some predicted this increased litigation would bring more hiring.
Despite the predictions, litigation has not increased significantly. Whether there is empirical support that young-lawyer hiring decreased in the early twenty-first century or increased after Castellanos, or not, remains unclear. But, today there is a perception of more young lawyers in workers' compensation. Observers often discuss that perception, and there is some disagreement as to whether the Supreme Court decision is responsible or whether it is merely a reflection of the passing years and increasing retirement rate of the Boomers. Whether we acknowledge it or not, time comes for us all.
While that may be of academic interest, the overriding point is that we perceive more young lawyers in workers' compensation litigation. And, there are those that perceive a "donut hole," with the gap being the presence of mentors and managers that are close to these young lawyer's age and experience. It was once common for workers' compensation firms to have "senior partners," then "partners," "senior associates," and the "new hires." In today's practice, some perceive an absence of "senior associates" in many instances, and even of "partners" in some.
In short, there is some perception that "new hires" are once again proliferating. There is a fear, however, that they are doing so in an environment of minimal camaraderie and collegiality within a firm. When I have heard this discussed by the old and grey, they often lament that such mentorship is largely missing in the workers' compensation practice at large. The potential exists in some areas with an Inn of Court, but some perceive that less than complete. They acknowledge it "as a start," and are quick with some criticism.
The Workers' Compensation section is striving for rebuilding connections. There was once a perceptibly more convivial spirit in this practice. The days of yore were replete with live events, informal meetings, live depositions, handshakes, small talk, babble, and even prattle. We used to be with one another persistently and repeatedly. Work was a social experience as well as a money-making endeavor.
Technology changed us.
The pandemic changed us.
The next generation's tech-savvy/tech-comfort is changing the practice.
On this side of the donut hole, it is inspiring to see so many young people becoming part of the practice. We see new people coming to workers' compensation from other practices, and fresh from law school. We are experiencing a renaissance, renewal, and reinforcement. The next generation is here, and it is undoubtedly not the Boomers that will be owning firms, writing rules, and navigating this narrow path between capitalism and socialism that is workers' compensation in 2030 (sure, a few may still be around, but they will be yesterday's news).
The Forum is in April. I wrote The Time is Now (April 2022) describing the Forum. It is an excellent opportunity to gather and collaborate, commiserate, and cultivate experiences. I encouraged there that we all go looking for "the next generation" in 2022. I am hopeful that many of you have done so over the last year. Now is the time for those lawyers to gather, connect, and communicate. As they face potentially less camaraderie or mentorship within firms, the time is right for them to find opportunities for collaboration and growth among their peers.
How many firms will send a young lawyer to the Forum in April? Last year I extolled one that did. I hope this year to find many fresh faces in Orlando. I hope to meet many young lawyers who are entering and claiming this practice as their own. The leaders of tomorrow will not be born or found; they will be made. I am hopeful that you will make them, foster them, and encourage them.
The OJCC will strive along with you. In May, we will sponsor our first Work Comp Academy. The response has been overwhelming. No one can contest that the community is ready for such an effort, and that young lawyers are in need of such an effort, and judging by our 40-plus faculty it is apparent that the community is committed and ready as well.
The time is indeed now. I look forward to seeing everyone at the Forum. Please consider including your new-to-comp colleagues in the opportunities. Let's build on our excellent foundations and bridge the "gap" or donut hole. And, on that note, bring some donut holes if you happen to think of it.
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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