A RULE ABOUT RULES

 February 24, 2020

A RULE ABOUT RULES

By Judge David Langham

In February 2020 the British Broadcasting Corporation (BBC) published Could We Live in a World Without Rules? This headline pulled me in. Coincidentally, later that day, I spent a lot of time around the attendees at the Florida Office of Judges of Compensation Claims annual workers’ compensation seminar in Tallahassee. For several years now, I have frankly lost count, the Florida OJCC has presented an annual free winter seminar in Tallahassee. Though it is intended to benefit those in state government who deal with workers’ compensation, it attracts attorneys from Pensacola to Jacksonville to Miami. 2020 was another great program. The convergence of that program with the BBC article was coincidental and striking. 

Overheard in conversation at the conference: 

“Rule ______ needs to be more strongly worded, with specific examples.”

“Rule ______ is clear, but most attorneys do not follow it.”

“Rule ______ leaves too much discretion to the Judge, and therefore it is hard to predict outcomes.”

“The spirit and intent of Rule ______ is clear, but judges will not enforce it.”

There were so many offhand references to rules. Rules have of course been an intriguing subject over the course of my workers’ compensation career. The history is discussed in Separation of Powers, An Interesting Analysis, which I published in 2017. Essentially, our government has interestingly engaged in inappropriate delegation of authority, and encroachment. But, in the end the separation of powers analysis led our Supreme Court to conclude in 2004 that making rules for workers’ compensation adjudication is for the Executive Branch. 

That Court analysis affirmed the Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications first adopted in 2003. Those were subsequently amended in 2006, 2010, 2012, 2013, 2014, and 2018. A lot of time and effort has been invested in originating and periodically revising these rules. The rules have their critics and supporters. Different perspectives bring differing opinions. 

Lawyers, to a large extent, are enamored with rules. Many who find the practice of law to be their life’s work share an interest in the process of rules, processes, and procedures. They were likely the kids you knew in grade school who excelled at both comprehending the rules to various games and engagements, and likely questioning them. 

The BBC article notes that rules are all around us, including such basics as where to stand on an escalator. That line reminded me of the lady who was arrested for not using the escalator handrail, a case that proceeded to the Canadian Supreme Court. Rules are rules, but perhaps there is a value in discretion on their enforcement? How much discretion is enough? Do we really want to live in a society where police arrest people for not holding the escalator handrail?

Our BBC author asks the question “Do we really need all these rules, why should I follow them and what would happen if we all ignored them?" 

This then becomes an apt analysis of our personal freedoms and their conflict with governmental “red tape” and bureaucracy. Ultimately, the author, “a behavioral scientist,” concludes that our personal animosity to rules is not likely a broad dislike, but a personal offense at “the unjustified ones.” Perhaps it comes down to how it is affecting us at the moment? He believes we would find value in “establishing the difference between” good rules and the bad. His analysis does not seemingly contemplate the likelihood that “good” and “bad,” much like the fleeting “beauty” is likely to be in the eye of the beholder. One person’s pet peeve may well be another’s valued guidepost. 

But, he invites us into consideration of “a world without rules.” He reminds us of the depth of rule permeation, mentioning the very rules of English and other languages, which govern the structure of his writing and mine. To communicate effectively, we follow the rules. In our leisure time with “sports, games, and  puzzles,” he concludes “rules are the essence.” And yet, when those rules displease us we are quick to decry them and those that enforce them. Remember when the New Orleans Saints fans sued the National Football League over their application of rules? Another similar “blown call” made the news just months ago in Jacksonville. 

Rules, we must remember, are subject to human creation, interpretation, and enforcement. But more importantly, it is critical that we humans are an imperfect species. The very best of us sometimes make mistakes. The most like-minded of us may nonetheless provide differing interpretations of any particular rule. We are neither algorithms, robots, or perfect. 

Conceding that we all tend to have disagreements about sports, calls, and outcomes, the BBC author reminds us that “a game with no rules is no game at all.” And similarly, litigation without rules would likewise be untenable. Against this backdrop of admitted rule necessity, we as a community must strive to engage in conformance with the rules. Whether we individually agree with a particular rule or not, it is important that we (1) acknowledge, (2) understand, (3) respect, and (4) strive to follow the rules. 

We will fail periodically (see discussion above regarding our human nature). But that truth does not militate against our obligation to nonetheless strive for compliance. The rules help us with our planning, our expectations, predictability, stability, and transparency of the process. As important as they are to lawyers, adjusters, and other professionals, they are more critical still to the citizens engaged in our community. Rules help us to function in disputes and disagreements with the order. In the end, litigation and dispute resolution is hard enough on us without the added stress of chaos, turmoil, or instability. 

Rules, the BBC author reminds us, are the “building blocks of a harmonious society.”  We are all enamored with our “individual freedom,” but we recognize that our many differences, with no limitations, would be “anarchy.” Even when we do not understand the foundation of rules, there presence and enforcement bring order. When we find them questionable, our appropriate course is to seek to change them, not to ignore or frustrate them. If we choose instead to ignore one here, or another there, then we are selectively bringing or condoning the very chaos they were seemingly created to foreclose. And, our complaints about the personal rule choices of others begin to risk hypocrisy. The sporadic or isolated failure to enforce brings less predictability, a return to chaos. Even with the best intentions, refusal to follow a rule is a troublesome foundation. 

That is not to say that rules of procedure are immutable. It is entirely practical to conclude that a particular rule may be inappropriate. It may, in word or effect, be inconsistent with a law or constitutional construct such as due process or self-incrimination. In our nation of laws, the implementation of mere rules must remain cognizant of such higher authority. Those who enforce rules must remain vigilant. However, in those isolated, discreet, instances in which a judge thus decides not to follow a rule, she/he should clearly enunciate the legal ground upon which such deviation is founded. The ignoring of rules should never be haphazard, unexplained, or pervasive. 

This is not to advocate a repressive or “oppressive tyranny,” of which the BBC warns. It is to advocate consistency and predictability. The truth is that consistency and predictability allow lawyers and their clients to solve a great many of their own problems and disputes without judicial intervention. When clear rules are consistently followed, this brings order to the community. Lawyers can predict outcomes, advise clients, and resolve disputes. 

The BBC author reminds us of the importance and perils of rules. The fact is that things can perhaps be taken too far (arrested for not holding the escalator handrail?). But, that is not to generally indict the existence of rules. That is to remain cognizant that rules are a constraint, and that they bring value, but are not flawless. As we acknowledge that, we must likewise concede that there may therefore be reason(s) to deviate from such rule(s) in a particular setting. And, with the passage of time, with the gaining of experience, we may find it appropriate to amend those rules (note the OJCC Rules have been through 7 iterations in the last 17 years).

Our cautions must be of the two extremes: those who would follow the rule without thought or consideration of some particular case or circumstance; and those who would refuse to follow or enforce the rule because of personal distaste or displeasure at their wording or direction. These two poles threaten the order we require and which are appropriate to litigation. Again, it is critical when a rule is sought to be avoided, or when a judge elects not to enforce, that the reasons are clearly stated. That a rule’s application may not be appropriate in some particular case must be accepted, but it is critical that in such case those reasons, justifications, or distinctions are clearly and thoroughly stated. 

A world without rules is as preposterous as a world with too many. Our society, lives, and professions are founded on rules. It is our obligation to strive to follow them, to be critical of them when appropriate, and to contribute to their evolution and adaptation. Could We Live in a World Without Rules? The answer is clearly “no.” The BBC author concludes that “perhaps the best advice is mostly to follow rules, but always to ask why.” Not such a bad suggestion in the grand scheme of things.