Have judges become advocates? () (California)

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Have judges become advocates? () (California)

Postby vampireinthenight on Tue Nov 10, 2009 11:00 am

I have observed what I think is a disturbing trend over the past few years, beginning with SB899, but becoming much more visible in the wake of Amarez and Ogilivie.

I overheard a newer judge explain, and almost boast to a pro per that he was there to advocate for her interests. Advocate??

I have also seen an adequacy hearing (trial) set on a pro per C&R which was mailed in, in which the judge has instructed the defendant to prepare an Ogilvie analysis for the trial. A burden of proof which has not even been alleged. Does this not create a conflict of interest in having a defense attorney prove up the applicant's case?

I understand that the role of a judge has historically been to "protect" the interests of a pro per, ie make sure they are not being screwed, but at what point did they become advocates? Are there not inherent dangers in this?

Has anyone else noticed this trend after SB899? Is it the judge's role to try and counteract legislative actions?
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Re: Have judges become advocates? () (California)

Postby jonbrissman on Tue Nov 10, 2009 3:49 pm

I have noticed no difference since SB899 was enacted.

Several judges have told me that their job description is "to deliver benefits to injured workers." That description necessarily includes some advocacy.

JCB
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Re: Have judges become advocates? () (California)

Postby denyse on Tue Nov 10, 2009 5:44 pm

My late, great mentor Leroy Huff used to say, "I don't care what the judge says. This case is going to the Supreme Court, the United States Supreme Court!". Sends chills down my spine just thinking back.

Any judge that doesn't follow the intent of LC 4660 and the philosophy of Chapter 1 (AMA Guides), will have every adverse Almaraz decision appealed. Almaraz doesn't say you can simply offer an alternative method without setting forth the facts and reasoning to support the conclusion. And that conclusion better rely on scientific evidence, prevailing medical opinion and consensus opinion. The Guides are 38 years old, and were drafted in response to the public's need for a standarized, objective approach to evaluating medical impairment. So why is your opinion "most accurate"? How many times have you authored this? How many doctors out of 100 would author a similar opinion? Is your opinion being contemplated in the 7th Edition revision? The schedule shall promote consistency, uniformity and objectivity (4660). The Guides are prima facia evidence. What's more objective? Using a cloth tape measure to measure thigh atrophy or analogizing the METS table under the respiratory chapter for an ankle? The clever ratings at some time will have to address the major threshold issue. Why is it most accurate? You cannot allow the rebuttiung party to skip the most important part. That's called the preponderance of evidence.

At some point, every one has a supervisor to worry about at the annual review.
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Re: Have judges become advocates? () (California)

Postby vampireinthenight on Thu Nov 12, 2009 8:58 am

Several judges have told me that their job description is "to deliver benefits to injured workers." That description necessarily includes some advocacy.


Several judges are often wrong. That is the point of this thread. An advocate means that you represent a person. Judges do not represent IWs. If what you say is true, there would be no need for a judge to refer someone to the I&A office. A judge would never feel compelled to say, "Well... I can't give you legal advice..." to applicants, even when in practice they are starting to do so with Almaraz & Ogilvie.

Delivering benefits means that a judge need only make sure that the payments are timely and that the settlements are adequate. It is not the role of a judge to secure the most favorable possible outcome for an IW.

I think you know the real reason judges are trying to compel defendants to prepare an Ogilvie analysis for them. Besides not wanting to spend the time "advocating" for the IW, they also know deep down that it is not their role to do so.
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Re: Have judges become advocates? () (California)

Postby rbaird on Thu Nov 12, 2009 9:34 am

On occasion, I had my words misinterpreted. On occasion, I was reversed by the WCAB. More rarely, my original decision was reinstated on remand from a Court of Appeal. I never considered my role as that of an advocate, but I was there to assure the system worked fairly and that goes beyond adequacy of settlements. What some on the defense side seem to overlook is that there is not a parity of knowledge, access to information, or resources. I had sufficient experience with SB 899 prior to retirement to conclude that it was like Frankenstein's monster, poorly drafted and that the evaluation and treatment regulations worked more hardship than benefit. This does not mean that I was blind to the need for reform, but it was my conclusion that the reform was badly flawed. Please understand that the WCJs did their best to implement the reform and make it work, but speaking only for myself, I became increasingly unhappy about the way the State of California treats its injured workers. Again, I was not a bleeding heart--I issued take nothings where appropriate, and a few lien claimants rued the day they litigated a nonmeritorious claim. I agree it would be inappropriate for a WCJ to tell a pro per. he was their advocate because that is not the role of an administrative law judge, but there are remedies and again, it is my observation that people sometimes hear what they want to hear, not what was said.
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Re: Have judges become advocates? () (California)

Postby vampireinthenight on Mon Nov 16, 2009 9:18 am

Thank you judge, that was aptly put. I can say with my limited time in your court, I observed you to take a well balanced approach. I apologize if my initial post sounded like I was condemning all judges. There are a number of them, however, that really need to re-examine what their role is. I want to say that it is mostly judges that have started their tenure post-2004 and have been thrust into a system that seems grossly unfair. It probably is unfair. But when a judge tries to overcome legislative issues from the bench, all it does is erode the integrity of the Board.
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Re: Have judges become advocates? () (California)

Postby steve appell on Wed Nov 18, 2009 8:56 am

I agree with Jon. How can a judge who is required to "liberally construe the labor code with the purpose of extending benefits to IW’s" not include some type of advocacy?
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