The Judicial Officer

Yesterday at the Workers' Compensation Institute's Annual Conference in Orlando, FL I had the privilege of addressing, along with Chief Judge of the Florida system, Hon. David Langham, workers' compensation judges from around the country.

These judges traveled to Orlando to get continuing education provided by the National Workers' Compensation Judiciary College. Perhaps some of them needed continuing education credits, perhaps some were there for the networking, but it was clear that all of them were there to further their judicial skills.

The presentation before ours was presented by the Hon. Roger Williams of the Virginia Workers' Compensation Commission, "Judicial Roles."

Not that our session was boring (Social Media Roundtable) but the presentation on Judicial Roles was fascinating to me because I'm not a judicial officer and quite frankly don't appreciate the task that workers' compensation judges face day in and day out.

Now I do.

Workers' compensation judges ("WCJs" from here on out to save my hands from some sort of repetitive injury - I've had enough workers' compensation troubles this year!) have, in my opinion, a tougher ethical dilemma than the standard municipal or superior court judge because the job is, essentially, to get ALL the facts necessary to make a determination that fits within the confines of the law, with the added difficulty of ensuring that a claimant gets all that the law entitles him or her to.

The liberality of evidentiary rules in administrative law proceedings makes the job so much more difficult than the disciplined and strict rules of civil or criminal procedure because the WCJ has to make that much more of a decision as to whether or not to allow proffered evidence, or assist in the foundation of evidence. It's not as cut and dried as in other law.

As a consequence WCJs find themselves with very real, very difficult, ethical and professional decisions to make and usually from the bench and without much time to reflect or research.

For instance, much of the discussion in the Judicial Roles session was about claimants who are in propria persona ("in pro per" or representing themselves for non-lawyers) - just how far does a judge go to ensure that the in pro per claimant has introduced into evidence sufficient material (if at all) to support his or her position on an issue?

And imagine the constraint a WCJ must exercise to ensure that his or her appearance of impartiality stays intact when confronted with a litigant who just "doesn't get it."

The WCJs primary role is to be the primary arbiter of the facts - time and again you can read an appellate decision that affirms that the WCJ is often the sole determinant of what the facts really are because the WCJ is on the front lines able to observe and analyze the credibility of witnesses and controls what comes in to evidence for consideration.

But more often than not (by quite a bit) the in pro per claimant is at a distinct disadvantage because he or she does not have legal training, has not been through countless trials to practice oral skills, is not accomplished at determining what is or isn't relevant, and more importantly is way too connected to the case to make objective decisions, particularly during the stress of his or her own trial.

How far does the WCJ go in such situations to suggest or help out the in pro per claimant to ensure that the record is complete and that there is sufficient evidence before the WCJ to permit a reasoned analysis and determination of the facts?

Not surprisingly the answer is very complex. There are differences in state rules and laws, there are differences in personalities and skills, there are differences in perspectives and perceptions; all of these combine to create dizzyingly difficult situations for the adjudicator.

To make matters more difficult, WCJs have much more limited resources than their counterparts in municipal and superior courts. Their hearing rooms are typically spartan, their budgets subject to indiscriminate trimming, and often they must do clerical work that takes time away from their judcial functions.

And don't forget that WCJs are humans too subject to all of the human frailties that afflict mankind, from personal problems to illnesses.

Though exposed to only a couple of hours of the issues that confront WCJs I came away with a new found appreciation for the difficult job they do.

Next time you see a WCJ tell them "thank you" for the hard work they do, for the difficult job they have, for doing the best they can do with the resources they have.

And if they're a California WCJ, nominate them for a Comp Laude(tm) Award.