Our Imperfection

Two Florida appellate decisions recently drew my attention. Neither has anything substantively to do with workers' compensation. Old Statler and Waldorf may be sitting back right now lamenting this workers' compensation blog so patently departing the topic. Please accept my apologies if that departure troubles you. This blog, you see, is about the law (which is the foundation to workers' compensation, writ large, as well as various other topics).  
In the first case, Santos v. City of Miami, 3D20-717 (January 27, 2021), a trial court granted the defendant's motion to dismiss the complaint. There followed an amended complaint followed by a motion to dismiss that. The trial judge thereupon issued a second dismissal order without a hearing, resulting in the review by the appellate court. The issue there was essentially that the second order mistakenly referenced the original rather than the amended complaint. Thus, the result affected the wrong cause.
In the second case, Mantilla v. State of Florida, 3D20-949 (January 27, 2021), the trial judge rendered findings regarding certain payments. That process involved determination of the income earned by one of the parties, and therein there was an element of "imputing income"; that is essentially determining what income "would be" in the absence of evidence regarding what that income actually was.
At first blush, these two cases have little to suggest interrelationship. However, they are each pertinent because of the Court's complimentary reference in each to the posture of the appellee (the party that isn't seeking review of the court, the "responding" party). In each of these cases, the appellee essentially admitted that the trial judge was in error. Error is an inevitability, no one is perfect. A natural consequence of the human condition is that errors and mistakes will occur.
The Court noted that the appellee in each case "properly and commendably concedes error," or "commendably confesses error." There is no seeming distinction between "conceding" or "confessing," and they are arguably synonyms.
However, the notable word in each opinion is "commendably." The party that prevailed in each instance might have persisted, resisted, obfuscated, distracted, and delayed. Each might seek to benefit from a mistake or error in its favor. But, each of these instead proceeded to the merits, and elected not to waste the time of the appellate court and its process. The admissions of error(s) described by the Court as "commendable," are also expedient and professional. This blog recently noted perceptions of unprofessional behavior in Pet Peeves of Judges (2021). The Court's recognition of professional conduct in these two instances stands in contrast to some of those "peeves."
The two examples are appellate. But, in this context, a tribunal is a tribunal is a tribunal. Referring back to the Pet Peeves post, the following listed "peeves" are relevant to this "confession or concession of error."  
"8. Trying to hide the truth of what's really going on in a case."
"12. Attorneys testing the boundaries of professionalism. Nobody wants to lose their case as a trial lawyer. And in the zealousness to win, sometimes attorneys (and hopefully mostly unintentionally) want to 'hide the ball.'"
"46. Failing to call to the Court's attention that a misstatement is made. Attorneys do not realize that they gain credibility with a judge when they voluntarily correct themselves in a hearing if they have misstated a fact or a point of law. The attorneys gain even more credibility if the self-correction is on a dispositive issue. Why win the battle, when you can win the war? The judge will likely trust the candid attorney, as the judge knows the attorney will not lie to him/her."
"76. Lack of candor with the tribunal."
In these, there is an underlying theme of candor, even when that word is not specifically used. The Rules Regulating The Florida Bar, Rule 4-3.3 is specific to "Candor Toward the Tribunal." This says that "A lawyer shall not knowingly" "make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal." That is, it is wrong to make false statements.
Beyond that simple prohibition, the Rule also requires a "A lawyer shall not knowingly" "fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client." Furthermore, "A lawyer shall not knowingly" "fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." That is, it is wrong to tell less than the "whole truth" or to allow one's client to do so.
Thus, the Rules seemingly preclude 8, 12, 46, and 76. These are perhaps not grey areas or margins. It is wrong to make misrepresentations. It is, conversely, "commendable" to bring to the tribunal each controversy on its merits. If there is error, counsel should admit it, reveal it, and steer the attention back to the merits, rather than some distraction or mistake. I strongly believe judges likewise should not be inquisitors or investigators, but in the spirit of this "merits" discussion it is appropriate for a judge to interrupt and question when there is some patent error (e.g. "did you just say 2020? My document says 2019?").
This truth and completeness paradigm is absolutely not a proprietary appellate court precept. The confession of error should be a focus of attorneys and parties in discovery objections, pre-trial proceedings, and trial. The "commendable" attorneys and parties will strive to maintain focus upon the real issues, the merits of the dispute. There is no harm whatever in simply admitting an error, whether yours or merely in your favor. That admission is nothing more than an acknowledgement of our humanity. It is entirely possible you or I will eventually make a mistake of our own and be grateful someone points it out. That admission of error is "commendable," empowering, and professional.
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    About The Author

    • 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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