Langham: An All-Too-Common Problem, and a Novel Solution
Thursday, August 9, 2018 | 128 | 0 | min read
In May 2018, WorkCompCentral reported that the Iowa Commission to Fine Parties to Last-Minute Work Comp Settlements. The story emanated from a publication and order of the Iowa Division of Workers' Compensation. The fine looks like a sanction, and in fact it is referred to as such in the publication that precedes the order.
The new process was set to begin July 1 and requires a monetary fine from parties to a case "where settlements are reported to the division less than 24 hours before the scheduled start time of the hearing."
It is not inconsequential — the fine is $300. The process was adopted based upon the Iowa District Court system imposing a similar sanction. The publication explains that the Iowa Division has "recently experienced an increase in late settlements." These late settlements, it says, "strains" the state's "diminishing resources."
I recall a Florida Circuit Court judge from my youth who had a similar antipathy to late cancellations regarding motion hearings. Attorneys were allowed to coordinate motion hearings on his calendar with the help of a judicial assistant. The assistant would ask each time for the title of the motion.
If the answer was "motion to compel discovery" or anything suggesting a similar purpose, the assistant would warn, "If you resolve the issue, you must cancel this hearing by 5 p.m. the day prior. If you do not, you must appear in person for the motion hearing even though the motion is resolved."
I had the displeasure of sitting 15 minutes one afternoon with that judge. We (opposing counsel, the judge and myself) amiably discussed baseball, the Florida Gators and the weather. Counsel and I had resolved the issue in the motion, but we had done so the morning of the hearing. Our entreaty that we cancel and not waste the judge's time fell on deaf ears.
Having failed to cancel the day prior, we wasted our time and client's money traveling to the courthouse, awaiting our turn and discussing pleasantries for 15 minutes. The judge was fastidious in making sure we spent the full 15 minutes after we had already traveled and waited our turn in the anteroom.
Note that I said "one afternoon." That never happened to me again. I may not be the brightest bulb in the box, but I do learn reasonably quickly. After that experience, I made my motion resolution efforts before the hearing day, and always reminded opposing counsel of the assistant's admonition and my prior experience of wasted time discussing pleasantries.
I suspect that judge did not hold many such hearings, but then I guess he did not really have to (lawyers do like to talk among themselves, and his reputation on those cancellations got around fairly quickly).
"But Judge," you say, "isn't it better to settle a case than try it?" There is support for that. There is great faith in the belief that a compromise crafted by the parties is better than an edict from the judge. The feeling is that people feel better when they contribute to the outcome, the solution, of their dispute.
The mediators I have known are unanimous in their contention that both parties getting "something" and none getting "everything" is a "good resolution." And mediation is said to be the best path to that outcome (of course those mediators are perhaps partial, as that is the skill they have and employ). And no one is arguing that resolution is not a positive path, merely that timing is important ,and sooner is better than later.
In Iowa, if a settlement is submitted without the 24-hour period, the fine of $300 will be imposed. And the "claims that have been assessed a late settlement sanction will not have the settlement approved until the sanction has been paid."
To a great extent, I suspect that most of those fines will be paid by employer/carriers, whether they know it or not. That is, if negotiations continue into the 24-hour period, that "cost" is likely to be added to the settlement demand whether, tacitly or otherwise.
That seems to be contemplated by the order, which requires:
The sanction shall be assessed in equal proportionate shares against the claimant and the self-insured employer or the insurance carrier(s), unless the parties reach a different arrangement among themselves as part of the settlement for payment of the sanction.
The Iowa Division is striving to make sure everyone is informed of this new policy. It issued the May 2018 order, and published it on its website. And it announced that it plans to provide the order to all parties in contested matters when a hearing notice is issued with a date after July 1, 2018.
I am confident that several penalties will be paid, word will spread and lawyers will likely adjust their practices (as I did with the motion judge above). And the division has left itself some room to be lenient if it wishes, noting that the sanction may be waived if "good cause" is shown.
What is not clear from the publication or order is how 24 hours' notice is of benefit to the judges or the state. I have presided over a few cases in the last 16 years. Many times, I left work in the afternoon knowing that my docket the following morning had a specific number of "confirmed" trials. And many times I found that by 9 that next morning that all of them would have resolved — even the ones that we were told the prior afternoon had no chance of resolving.
When that occurred, I still found plenty to do with my day. There are always motions and settlements and stipulations to review. There are always orders to draft, proof and upload. Say what you want about this job, but don't ever imagine it is boring. It is never boring. So, I find myself wondering what benefit the 24 hours' notice will serve.
Of course, there is one instance in which that is obvious. In Florida, many judges travel to counties in their district and conduct trials. Those events are often an hour's drive or more from the district office. It is admittedly frustrating to drive, often fighting morning traffic, to a remote destination only to find that the lawyers have spoken and resolved the case on the courthouse steps.
That eventuality often results in essentially a lost half day of work, wasted on needless driving, traffic stress and expense. In that context, knowing the day before would be helpful and would perhaps increase efficiency.
However, it would be really helpful if parties to litigation would endeavor to meet a deadline of 30 days prior to trial. If parties resolve issues or settle, and the Office of Judges of Compensation Claims were be notified 30 days before the scheduled mediation or hearing, then that appointment could potentially be used by some other parties for some other case. But, in order to afford someone else the use of that cancellation time, there is the need for due process, and that includes an appropriate amount of notice.
I have voiced this idea at many lectures over the years. I consistently hear that it is both unreasonable and unrealistic to expect the parties to resolve issues 30 days prior to mediation or trial. But consider that such a 30-day deadline is no different, in fact, than the deadline of the actual mediation or trial.
If you do not resolve issues or settle before trial, the trial is convened. (Mediation is the same.) That does not mean parties cannot still resolve or settle after trial, but the point of resolution is often that you are not put through the expense, risk and stress of the mediation or trial.
There is no difference between a deadline on Aug. 2, 2018, and a deadline of Sep. 2, 2018. Either could be the parties' deadline. One is earlier than the other, but each is merely an arbitrary date by which the work must be done. But, only if there is an effect given to that deadline.
There has never been a deadline, that I know of, that was convenient. We all live with deadlines and most of us do not like them. We tend to put things off until the deadline (most college term papers are written the night before or morning that they are due). So, perhaps the Iowa effort is simply to change the deadline.
It changes the perspective of parties as to how much time they have. They used to think of trial time as a deadline and will now think of 5 p.m. the day before instead. Perhaps it will eliminate needless travel for judges or otherwise facilitate better use of time and other resources (hearing rooms, court reporters, etc.).
But, perhaps it is also a harbinger of better planning overall. Perhaps with the appropriate motivation, culture and practice would change our actions so that better communication occurs earlier and late cancellations are reduced or eliminated.
It will be interesting to see how the Iowa experiment turns out. Will the litigation process work more efficiently with earlier deadlines and afford a financial incentive?
David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.