Don't Bet the Business

It is difficult not to feel saturated from the myriad news reports, expert opinions and government proclamations concerning the pandemic and its effects on nearly every aspect of, well, everything. 

I do not wish to add new layers to the discussions, debates and, at times, arguments that seem to be the inevitable result of anything COVID-related. However, before we end our second year under the thumb of this virus, I thought I would point out some of my observations in my little part of the world, the civil legal system. 

After some thought and reflection, I arrived at five take-aways from my experiences during the pandemic.

1. Our legal system is resilient

When the pandemic hit, we likely all, or nearly all, thought it would be a brief disruption to the civil justice system. When the courts shut down, resulting in case schedules being disrupted and trials being adjourned, we took those realities in stride assuming the effects would be brief.  There was, indeed, a lot of confusion at first, but the courts and the attorneys practicing in those courts adjusted. We all learned a new word, “Zoom,” and we all adapted to what became not-so-temporary virtual practices. Some of those practices have worked out quite well; some not so much. But when we start pining over the pre-pandemic “good old days” it helps to remember that the ways that we once did things were far from perfect.  What is important is that we adapted and kept moving forward.

2. Old dogs can learn new tricks

For those of us who can still remember using carbon paper to make copies, practicing law in today’s virtual world can be daunting. I for one am certain that I use about 20% of my computer’s capabilities, and even less of the pocket computer called a smart phone. Learning to use new computer software, juggling video cameras and virtual deposition exhibits on multiple screens and managing the inevitable glitches along the way has been challenging to say the least, but I am learning. The courts, judges and lawyers are, for the most part, learning together, and we are finding that we can adapt to and effectively do the old things in new ways. We also have learned the importance of patience.

3. Some of the old practices can be left behind

The civil justice system was never perfect, but I think those of us working in it generally felt that overtime it had evolved into a fairly efficient way to resolve disputes. I still think that, but the pandemic has forced us to reevaluate some common practices, to make changes, and in the process to realize that some of the tried and true ways of doing things were not so true. Not every motion needs a hearing, not every scheduling order needs to be preceded by an in-person conference or hearing, many depositions are just fine over the phone or by video, and a lot of the travel, both locally and out of state, simply is not needed. Our trial and error period continues. But one thing is certain, what the practice of law will look like as a result of the pandemic will continue changing.

4. Lawyers can be nice

Calls for civility in the law have echoed for decades, with varying degrees of success. Zealous advocacy was sometimes confused with a refusal to cooperate, questionable frankness or downright nastiness in how lawyers interacted. Some of that still happens, but I think the pandemic has reminded many, and taught a few, that patience and collegiality are useful traits.

5. Personal interaction was taken for granted

Before we were forced into a virtual practice, we sometime took for granted how important it was simply to interact with each other. Practicing virtually certainly offers many conveniences for lawyers and clients alike. Even after things return to “normal,” many of those convenient practices likely will be part of the new normal. However, for this old-timer I will declare here and now that many depositions over a video screen lose something, as do dispositive hearings and trials. We already knew that communicating by email could be problematic for a variety of reasons. Those problems worsen when email is the principal means of talking to one another. We are social creatures and the legal system is based, in part, on a certain level of personal interact and confrontation. Working to resolve problems just seems to be more effective when the parties are, at least sometimes, sitting in the same room. I hope that is something the pandemic does not forever change.