A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
case management

 

How To Do It: Articles, Interviews &
Practice Tips

Articles emphasizing practical knowledge you can't find in practice guides

People Who Made A Difference
Profiles of people who changed workers’ compensation law.

• The Honorable Mervin N. Glow
• Jettie Pierce Selvig, Esq
• Barry J. Williams, Esq.
• Melissa C. Brown, Esq.
• William A. Herreras, Esq.

White Papers

Letters to the Editors

Meet the Editors
• Warren Schneider
• Marjory Harris


Archives

 

 

 




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



The Defense Perspective:
Seven Proposed Rules of Practice
for Workers' Compensation

By Michael G. McDonald, Esq


In this series, Michael G. McDonald, Esq. of the
McDonald Law Corporation offers practical advice
to WC lawyers and adjustors.

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