Do parties in litigation have a right to speak their piece?
Ohio's Twelfth District Court rendered an interesting opinion in January. It was a workers' compensation case styled Courtney v. Stephen Buehrer Admr., Ohio Bureau of Workers' Compensation, Case number. CA2016-06-040.\
The recovering worker in this case was injured at work and diagnosed with "cervical strain, lumbar strain, transverse process fracture L2 left, transverse process fracture L3 left, and subcutaneous contusion of the left buttock."
Those conditions were accepted as compensable. The worker later sought compensability of a "substantial aggravation of pre-existing degenerative disk disease," but the Bureau of Workers' Compensation denied that claim (Ohio is a "monopolistic" system in which benefits are paid by the state itself).
The recovering worker appealed the denial, and a hearing was scheduled. At the outset, the trial judge announced that the court would "have the parties submit written closing arguments in lieu of oral argument."
With any process or procedure, there will be preferences held by various parties and attorneys. Some like writing and others prefer speaking. To some extent, this may be influenced by an individual's perception of their personal strength or their perception of what influences a particular judge.
When there are spoken closing arguments, there is a tradition that the party with the burden of proof (the party prosecuting the particular claim or motion) speaks to the issues first, then the responding party speaks, and ultimately the prosecuting party gets the last word.
I have presided over thousands of motion hearings and hundreds of trials over the years. I have had parties who preferred to voice a closing argument, and others who asked for time to submit a written one.
At the end of a workers' compensation trial, summarizing the evidence in a concise closing is not usually time-consuming. One detriment I have heard voiced about this process is that the defending party may feel he has little time to consider the prosecuting party's closing argument and feels he has to effectively respond quickly.
Similarly, the prosecuting party has little time to think and analyze after the response and before the "last word" is delivered. But when the parties walk out of the hearing room after this process, the matter is over for them and they need only await the judge's ruling.
This same pattern is often employed when closing arguments are instead delivered in a written form. This method allows the parties more time to think and analyze. The prosecuting party can reflect on the proceedings after the hearing and perhaps provide a more succinct, deliberative and persuasive argument in writing. The responding party has the same opportunity in some period of days thereafter to digest, think and write a response. The written closing argument process might arguably be effective in that it allows time for reflection.
But in Courtney, the judge ordered the written closing arguments "to be submitted 'in blind.'" This meant each side was to submit closing arguments on the same due date, each side filing its argument without knowing what the opposing party would say about the evidence and the case.
The trial judge explained the logic in the hearing. The explanation is not completely clear, but centered upon trial scheduling and the judge's calendar commitments. The pronouncement on written closing arguments was made at the outset of trial, and "neither party objected to this decision." When the presentation of evidence had concluded, "the trial court again noted the request for written argument" and afforded the parties "about two to three weeks to just submit a brief written closing statement."
It was clear at that time that these arguments would be "submitted in blind." The recovering worker's attorney specifically asked about that process and timing, the judge confirmed the instruction, and counsel replied, "That's fine."
Both parties submitted their arguments, and the judge promptly issued an order in which compensability of the "additional conditions" was denied. The recovering worker appealed the decision, arguing that "closing arguments in blind" were legally inappropriate.
The worker's complaint was essentially that this process resulted in "depriving him of an opportunity to reply to the BWC's written argument." In other words, the process denied the recovering worker, the prosecuting party, of the opportunity to have the last word before the judge ruled.
The Courtney court ruled that "a trial court judge possesses inherent power to regulate court proceedings." As such, it explained that rulings about the process of proceedings would be reversed only if the "complaining party demonstrates a prejudicial abuse of discretion." But it appears that the court was most persuaded by the fact that the recovering worker "did not object to the trial court's decision." The court held that by failing to object, the worker "has waived all but plain error."
It explained that "the plain error doctrine" is an error that "seriously affects the basic fairness, integrity or public reputation of the judicial process." The court concluded that the process of requiring written closing arguments, even "in blind," was not plain error. The court acknowledged that this procedure is contrary to the applicable statute, R.C. 2315.01(A)(6), but explained that "statute plainly authorizes a trial court to deviate from the specific procedure outlined." The trial court explained its scheduling and reason, and clearly informed the parties of the "in blind" process.
The failure to object is a critical point in the outcome of this case. The appellate court concluded that the "method of closing was agreed to by the parties or, at a minimum, acquiesced to." It noted that rights can be waived by parties in litigation, and the failure to object was effectively such a waiver.
But a second critical point made by the court is that "the decision to proceed in this manner did not prejudice the parties." The court concluded that the "disputed factual issues were simple and straightforward," and "this was simply a matter of judicial discretion in the handling of its court proceedings."
The lessons from Courtney are: (1) when you object to something, say so; and (2) understand that there will likely be times when the process employed may not be the one you personally prefer; (3) and become adept at various procedures to enhance your comfort with them and your chances of prevailing with them.
David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column was reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.
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