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December 1, 2021 Letters

Letters

Phoning It In?

“The lawyer just phoned it in.” Before the great pandemic of 2020 this was a pejorative phrase. It meant someone couldn’t even bother to show up. It indicated a lack of commitment, preparation, and professionalism. It has come to have a very different meaning over the last year. The extraordinary circumstances of the pandemic forced all of us to adapt to new ways of doing things so that the work of the judicial branch could continue. Florida’s bench and bar have responded admirably, using technology, creativity, and flexibility to conduct discovery, hearings, and even trials. The administration of justice has continued in the most difficult of circumstances.

But as the pandemic wanes and businesses and institutions contemplate a return to normalcy, lawyers and judges must evaluate what future role video proceedings should appropriately play in the work of the courts and the trial bar. It has been suggested that Zoom hearings, Zoom depositions, and a world of remote proceedings will be a permanent part of our litigation landscape. There have been positive reviews of the use of video proceedings grounded in considerations of convenience and cost savings.

But considerations of convenience, or cost savings, must be balanced against the powerful presumption of the superiority of in-person proceedings for anything that really matters in the course of human affairs. This fundamental presumption is grounded in thousands of years of history, and undergirds the entire structure of our common law legal system.

Lawsuits and litigation involve matters that are of the utmost importance to litigants and to our communities. The rule of law upon which we all rely is strong. It is strong because we treat the disposition of these lawsuits and the rights of litigants with the utmost dignity and respect. We build beautiful courthouses and courtrooms. Our judges robe. All of the participants, judges, lawyers, clerks, witnesses, and jurors, swear an oath to do what is right. And we do all of this in the same room in person. We can look into the eyes of the other, gauge the physical mannerisms of all of the participants, and we can hear and see all that transpires in real time and in true reality. We use all of this to adjudge who is most credible, and which way justice should turn.
This presumption for in-person participation by all is so strong and deeply embedded in our system of justice that prior to the pandemic there were only limited circumstances in which witnesses could testify remotely, and only with the consent of the other parties or upon court order.

These fundamental presumptions in favor of in-person proceedings is nothing new, and it is not accidental. Human history has long prioritized in-person meetings, conversation, and personal encounter in any important matter. Ancient Greece and Rome had courts and trials not unlike our own. Chiefs, kings, and ministers traveled in often perilous and harsh conditions to meet in person. Legislators trekked through wilderness to meet in person. And for the last nine centuries common law judges literally rode circuit in remote places to dispense justice in person.
Dispensing justice in person was not just a matter of human preference. It also ensured the integrity of the judicial process. Witnesses, litigants, and jurors who appeared in person were less subject to the potential for improper influence, or to efforts to subvert justice through deception or fraud. A litigant or accusing witness had to appear in person to quite literally face the accused. And the accused had the right to see, hear, and confront their accusers.

These principles are at the very heart of our well-developed system of due process protections. They are engrafted in the constitutions of the U.S. and of Florida. They run through our rules of evidence and procedure. The way in which we conduct the cases themselves reflect this honoring of direct human interaction as the best way to achieve integrity and justice. Although some matters may be decided simply on written submissions, our system strongly favors argument by counsel as part of the adjudicatory process. The centerpiece of our judicial fact-finding is the right to cross-examine witnesses and test the evidence with questions by counsel.

The tableau of the trial is so ingrained in our culture and history that we naturally adhere to it in other settings. The adjudication of complaints in the setting of a school, business, or even a family usually features at least some informal adjudicatory process with a right to be heard, to ask questions, and ultimately resolution by a neutral. This is our reflexive norm. It is so central to our culture that the trial court process is a frequent and powerful part of dramatic presentations in literature, television, and film.

All of this — historic, legal, and cultural — is grounded in human interaction and a compact we have to seek justice quite literally together. It prioritizes the ability to see and know one another in these most important matters. It insures integrity in the process. It maximizes the ability of witnesses and jurors to be free of improper influence. It allows litigants to appear in a courthouse that is a neutral and secure place to put their case, be they rich or poor, powerful or marginalized.

This is not just for the trial of cases either. Judges grapple daily with close and difficult questions of law. Argument by counsel, and questioning by the court are effective ways to reach and resolve the real issues at hand. These are critical proceedings that can decide a case in its entirety. In-person argument on these weighty issues is not just our tradition, it’s the best way to get to the right result.

None of this is to say that non-contentious matters, including scheduling, routine docket calls, or other business of the court cannot be handled with some remote technology. Knowing what works is a beneficial outcome of the last year. We know the capabilities of new technology and it’s been tested by bench and bar. It has a future role. But lawyers and courts must be vigilant to ensure weighty matters of law and evidence are accorded the dignity and integrity of process they deserve. It will be up to all of us to differentiate between matters that are appropriate for limited remote proceedings, and the vast majority of the legal work of the courts and lawyers which deserve in-person hearings.

The use of video technology threatens to trivialize our most critical and vital proceedings. The work of the courts is simply too important for the kind of remote and twice removed reality of a video screen. When the future of a person, a business, or a family is at stake, we should not let considerations of convenience outweigh the integrity and sanctity of the process.

It has been necessary to use video and other methods to conduct the business of the courts. If it is necessary to do so than we must and will adapt and use those methods. But as we proceed out of the pandemic and have a choice we should always choose the very best and most effective way ever developed to resolve disputes in courts of law: in person and together.

We go to the courthouse for our most important matters, and we gather there in a tangible sign of our human compact to pursue justice. We must never willingly trade this deeply human process for the artificial remove of a video screen and the tinny imitation of the true human voice.

It’s all just too important to phone it in.

Thomas E. Bishop
Jacksonville

Failure to Mature?

I was speaking with a physician who happens to be a specialist in addiction and treatment. She explained to me several findings which helped me “understand” that which, heretofore, was baffling. I was discussing a case where two friends, in their 20s, had an argument over the sale price of a three dollar bag of “weed” (marijuana).

The fight escalated, and one friend shot and killed the other over this escalated dispute. The doctor explained that emotionally, both were probably in their early teens, as that is when they had started smoking pot. It turns out that marijuana causes a failure to mature. That is, you remain in the emotional state of the teen years (or whenever you started smoking with regularity). This explains a lot of unbelievable behavior which is seen in such violent crimes which have no conceivable excuse for the acts which result in death.

Not only does marijuana cause a lack of maturation of one’s thought processes, but it is widely agreed, by experts in addictive behavior, that it is the gateway drug to hard core drug use.

In a conference the physician attended, every panelist agreed that all hard core drug use starts with marijuana.

In a January 2018 paper in the American Journal of Psychiatry, the author stated that people who used cannabis in 2001 were almost three times as likely to use opiates, three years later, even after adjusting for other potential risks.

There is peer review research which shows that marijuana can cause or worsen severe mental illness, especially psychosis. Teenagers who smoke marijuana regularly are about three times as likely to develop schizophrenia.

The Frontiers of Forensic Psychiatry published a Swiss study of 265 psychotic patients, finding that, in a three-year period, young men with psychosis, who used cannabis, had a 50% chance of becoming violent, which is four times higher than psychotic patients who did not use cannabis, even accounting for alcohol use. An Italian study found that cannabis use was associated with a ten-fold increase in violence.

This brings me to the big “lie,” which is that marijuana is not a grave danger to society. Marijuana was sold to the public as a “pain killer,” though it is too weak to work as a pain killer for people who really need pain relief. The pain angle was just a way to make recreational use “acceptable.” It was all part of the lie.

The State of Florida should form a commission to study this issue, and if the evidence shows societal detriment, any and all marijuana use should be made illegal.

The legal use states of Alaska, Colorado, Washington, and Oregon, which first allowed “recreational use” in 2015. These states, combined, had, in 2013, 450 murders and 30,300 aggravated assaults. In 2018 they had almost 620 murders and 38,000 aggravated assaults, an increase of 37% in the murder rate and 25% in the aggravated assault rate. The numbers don’t lie. Marijuana is a very dangerous, worthless (in terms of any type of treatment), drug, and it needs to be reined in, and made illegal for any use.

Edward P. Dutkiewicz
Dade City

Condos

I note the tremendous amount of work that went into the suggestions made by the task force. Now in my fifth decade of community association law practice, I have a little more insight than many peers. I have some modest proposals, probably none of which would ever be agreed to by the “stakeholders.”

Make official records readily available. With a 10-day period to provide access, many buyers would have no time to get a copy of financials budgets, reserves, etc. I represent associations, but when I’ve represented individuals the process is slow and cumbersome, and I feel like I am being led to the entrance of the warehouse where the Ark of The Covenant was stored. All official records should be online and available to all owners via password at no charge immediately, all the time. The process is ridiculously opaque.

Stop making delinquent owners a protected class. Why did the legislature, in its infinite wisdom, put yet another roadblock in front of associations trying to collect delinquent assessments effective July 1, with the 30 day/First Class letter requirement? Owners who pay bear the cost of those. Ironic, no? It’s assessments that pay the bills. Make it harder and more expensive to collect and less will be collected. The legislature has been hostile to associations for years, adding time frames that no for profit business is subject to. Two 45-day notices, etc. In balance, this hurts owners who timely pay and rewards delinquents.

Revoke sovereign immunity for the negligence of building departments for issuing Certificates of Occupancy on buildings that might be riddled with construction defects from day one? The case was riddled with inconsistencies and lets cities and counties off with a free pass for their negligence. Consumers should feel confident that the largest investment of their lives, at a minimum, has been properly inspected, not just with a drive by and check off. No offense to hard working, diligent inspectors, but how about revoking liability for legal or medical malpractice? We pay taxes too!
Finally, how about prevailing party legal fees for construction defects? This would be highly controversial but in the U.S. it seems that major reforms come through litigation, not legislation. Ford Pintos didn’t stop exploding until a lawsuit forced a change in design Ford knew about. I think it cost $20 a car to prevent it.

This is where we stand.

Robert L. Tankel
Dunedin

Two-Party System

Our two-party system has degraded into an uncivil war, and our country and our citizens are the “collateral damage.” Discussion of real issues has been reduced to simply “us vs. them.” There are rational solutions to our biggest problems, healthcare, immigration, law enforcement, economic recovery, and others, but our leaders are completely irrational in the way they govern. As voters, we just get to “choose sides” and be cannon fodder for their re-election campaigns.

We are entitled to vote by secret ballot, and that is our protection from government reprisal for unpopular votes. We don’t really have that, and the two parties abuse our personal information.

They know where we live, what party we vote in, if and when we vote, what addresses have the most Republicans or Democrats, and they use it to gerrymander and focus their campaign spending to collect their most likely “majority” at the expense of ever having to solve the problems.

When we register to vote, the only information which is needed is our address and our proof of citizenship, and that shouldn’t even be public record. Our voter ID card just needs to be our current driver’s license or state ID to prove we still live at that address. That’s all. The supervisor records the fact that we voted, so they know the total vote count, and our individual voting history should not be public record. Then the Democrats and Republicans would have to respect all people and talk to them about real issues. Registering as a member of a “party” should not be allowed. They can have a party primary, but the voter decides in which one to vote each election. We are a country divided, but it is the parties which are divided. Protect our secret ballot rights, and the parties will fade away or have to govern for all of us. I think a constitutional case to protect the privacy of our voter information would be a winner.

James M. Stuckey
Stuart

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