A Time for Change

A Time for Change

While the rest of the word has been busy innovating, automating, and reimagining, the legal profession has been sharpening its quill pens and unfurling its parchment scrolls.  Yes, there have been changes, and there are new tools available to the profession.  But in 2020, at core, the legal system still operated the same way as it had hundreds of years before.  People lined up to get face time with a judge, submitted formal requests on papers, and lawyers argued about archaic rules of decision.

In short, the legal system has been resisting change in through the last quarter century.  And then it met something more stubborn than itself:  COVID19.

In March of 2020 the legal profession met a virus that would not budge, and overnight the legal profession began to change.  It simply had to.  It had to do something to move cases through the system and provide for the livelihood of its stakeholders.  And so, the courts shut down, law offices close and the legal system took itself online. 

These changes throughout the country allowed lawyers and courts to begin functioning without in person contact.  And even though this style of practice was new for many, this change relied heavily on existing tools that had already been available for years to other professions and the general public.  For instance, while courts had previously relied on in-person meetings to schedule relevant dates in cases (known to attorneys as "scheduling conferences"), those in person meetings had to give way to remote meetings.  And so courts began holding those meetings by Zoom, and in some instances simply resort to using telephones! 

While conducting scheduling conferences by Zoom and phone seems like a no-brainer to most of the public, this was a huge step for the legal profession and represented major change in the cost structure of litigation for the public.  To put this in perspective, a judge who receives and disposes of 1,000 cases a year must have a scheduling conference for each of those cases.  Each of those cases must be attended by at least two attorneys, and routinely have several attorneys in attendance.  Each of those attorneys must prepare to go to court, travel there, wait for the court to be ready, attend the hearing, return to their office, and then mentally unpack to start other work.  All this for an in-person conference that could otherwise be handled with a 10 minute phone call. 

At the end of the day, a scheduling conference could take an attorney several hours in preparation and travel time.  For an attorney who charges several hundred dollars an hour, the client may expect to pay thousands of dollars.  While the legal system has maintained that these in-person conferences were important for the players to get to know one another, I have never heard a compelling reason why this expenditure of resources was justified.  More importantly, the profession appears to have never considered whether that expenditure delivered a commensurate value to the people who were paying for it.  In a country with thousands of judges, managing thousands of cases, consuming hundreds of thousands of billable hours for attorneys, these conferences represent an enormous cost center for the consumers of the legal system.   Millions of dollars expended, just so a judge could sit face-to-face with attorneys and calendar a handful of dates -- a function that could more easily be accomplished with a simple phone call.

Scheduling conferences were only one way that the legal system changed.  Attorneys began to meet their clients remotely, courts began to eliminate paper, and attorneys learned how to take deposition from their own offices.  Changes abounded and the legal system got lean.

COVID19 put an end to the madness.  Or did it? 

While the pandemic forced the courts and lawyers to new efficiencies, the end of the pandemic appears to be in sight.  The courts are preparing to reopen.  Lawyers are beginning to meet clients again.  But the system -- the underlying infrastructure of the law -- has not yet changed.  As judges and lawyers begin to think about returning to work, the machinery of the law that we abandoned over the prior months sits unused, shiny and well oiled like a vintage card ready to be turned over and taken out on the road.

Make no mistake, some of us have turned a new leaf and won't be heading back to our old ways.  My office, for example, has not purchased paper in over a year now.  Our photocopiers remain covered in tarps since we went 100% remote.  But for every office like mine, there many that are just waiting to put their old, high-priced conference rooms back to work. Courts are ready to return to live hearings and conferences.  All the infrastructure we had to do away with just to survive a global pandemic is waiting for us, doing push ups in the parking lot.

At the same time, some thought leaders have recognized that we have a choice.  The pandemic has shown us that our old ways of doing things do not fit in a modern society.  From this collective experience, some have begun thinking about making law a better thing, a thing that serves the public and is deserving of its respect instead of ridicule. 

To be sure, we are at an inflection point.  The legal community has witnessed for itself that our old ways of doing things are hardly necessary, and in many instances are counter productive to the economical and efficient administration of justice.  This pandemic has awakened us to other possibilities.  The question remains, will the legal system as a whole abandon its old practices and tear out the infrastructure that has bound up the profession for the last five centuries, or will we step into to present and adopt the technologies and concepts that prevail among the society that we serve. 

There is no doubt.  If ever there was a time to make law better, it is now.

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