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Do you ever wonder why there
are so many lawyer jokes? Why lawyers’ reputations
are not much higher than car salesmen’s? Our profession’s
reputation has always
had critics, including Shakespeare. The civil and criminal areas
used to be the battleground of the Type A personality, willing to
do battle over the smallest of
issues, so that the advocates for a particular side could claim
victory. But our
Workers’ Comp system was always a little different.
The Workers’ Comp System is a benefits-providing system, designed
to promote
prompt medical treatment and payment to injured workers. It is a
system which
works within many attorneys’ life framework. That is, we can
work on either side of
the system in order to make sure injured workers get the benefits
they need. The
type and amount of benefits may be at issue, but the underlying
nature of the
system remains in the back of our heads.
The system is being challenged from without and within. The Legislature
has made
multiple changes to laws over the past few years. This has produced
anxiety,
frustration and heated debate about the system, itself. The laws
and regulations are
more complex, yet the Legislature’s acts seem to be pushing
In Pro Per applicants
into the WCAB field offices at an alarming rate.
The WCAB has hired new judges, some of whom have limited WC experience
or
have experience only representing either applicants or defendants.
There seems to
be a disconnect between the judges, attorneys and injured workers.
I recently attended a trial where there were two defendants. Our
only common
ground was to prevent the applicant from obtaining a 100 percent
award. Other than
that, we had different interests. My co-defendant filed moving papers
two weeks
before trial. At the trial, the judge and my co-defendant got into
a heated discussion.
The fuse was lit for sanctions. It was clear they were not listening
to each other. At
the risk of setting my self up as a target, I requested to be heard.
After explaining
the situation, the judge then understood my co-defendant unilaterally
made his
motion because there was no communication between any of the parties
on the
particular issue. The judge had been under the impression the parties
had
discussed the issue prior to the written motion. The fuse for possible
sanctions
was snuffed.
In another recent event, applicant’s representative was ordered
to serve minutes of
hearing taking a trial off calendar. The order and papers were given
to him on a
Thursday, when trial was scheduled for Tuesday. The order was faxed
to our office
on Monday afternoon. Needless to say, trial prep and witness prep
had already
taken place over the weekend. This was a gaming play and the judge
was made
aware of the situation. The judge was very unhappy with the situation
and I hope
has a long memory.
This gaming and general lack of respect for each other and our clients
are getting
worse. Judges are papered with motions for removal by primarily
young attorneys,
because a judge’s decision went against the attorney. In 20
years of practice, it
was a very rare occasion in which a petition for removal has been
filed by me. The
petition is an extraordinary petition and should be reserved for
only the most
egregious of situations.
Now, we all know the judges who do not want to come to work, tired,
sick or are
just plain miserable at the Board. For whatever reason they can
make all of our
lives miserable. In a recent event, I witnessed a situation where
an overwhelmed
judge took it upon himself to spend 10 minutes denigrating three
attorneys, who
allegedly were wasting his time. The attorneys actually understood
the judge was
under a lot of pressure and were attempting to assist the judge.
Their explanations
never made it past the eardrums of that judge. In short, we need
the judges to act
decisively and with tolerance.
I propose seven rules of conduct for WC attorneys and judges. These
basic
principles of life can make our system run smoother by promoting
discussion
and problem solving.
1. Civility: be polite to others
2. Decorum: act in an appropriate or dignified manner at
all times
3. Professionalism: Be worthy of the title “Professional.”
A profession is work
that requires advanced learning or science.
4. Respect: treat each other with respect or consideration
5. Trustworthy: our word is our honor. Be reliable to others.
6. Courteous: be polite to each other and the judge.
7. Helpful: be useful. Train young attorneys and teach and supervise
them to
be better professionals and better members of the WC community.
As for the attorneys, we should make every effort to accommodate
each others’
schedules. We should make sure orders are timely served on the opposition.
Finally, limiting sarcastic letters to your own computer and redrafting
more
professional tomes would be a start to get this system back on course.
Train young
associates and supervise them. They come out of law school full
of fight and vigor.
Channel that exuberance into a positive experience for the judge,
client and
opposition. Most of the time, we can all get along.
Michael G. McDonald is the founder of McDonald Law Corporation
in Concord, California and a Certified Specialist in Workers' Compensation
Law, State Bar
of California.
For more information, click
here.
Michael G. McDonald, Esq.
McDonald Law Corporation
1800 Sutter Street, Suite 430
Concord, CA 94520-2563
Voice: (925) 363-4380
Fax: (925) 363-4352
Other locations: Sacramento, San Jose and Fresno
http://www.mcdonaldlawcorp.com
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