What we Learned about the Practice of Law and Ourselves from the Novel Coronavirus

The Bencher—July/August 2020

By Sara E. Barnett, Esquire; Jonathan O. Steen, Esquire; and Judge J. Daniel Breen

In mid-March, it would have been difficult for most of us to fathom the depth of change that the novel coronavirus would produce in the legal profession in just a short time. The first two months felt like a year or more, but in some ways, we have moved light-years into the future regarding the practice of law.

Practicing in a mid-sized town in West Tennessee, ripples of the COVID-19 pandemic arrived more slowly in our area. In March, we began preparing for the total lockdown that was likely inevitable as we saw the pandemic spread our way. On March 13, 2020, the Tennessee Supreme Court entered an order activating a “Continuity of Operations Plan,” which provided suspension of in-person proceedings but making it clear that courts were still open for business: “First and foremost, the local and state courts of the State of Tennessee are open and will remain open under all circumstances, subject to the provisions of this order.”

Almost simultaneously, our Federal District Court for the Western District of Tennessee issued an order suspending jury trials, continuing in-person hearings, and directing court operations “under the exigent circumstances resulting from COVID-19 outbreak.” Instantaneously, these necessary court orders and the executive orders from the governor and our mayor radically altered the practice of law. Courts were open, but they were also closed.

Lawyers tend to adopt change at a more than cautious pace. As a profession, we often resist employing new technology and instead insist on using the same tools we have used for 30 years. There are many reasons for this, some more valid than others. Particularly in rural areas, technology in the clerk’s office is often non-existent. You still need to go pull the giant deed books to do a title search in many counties. In this practice setting, there is little incentive for adopting new technology.

Another reason we are slow to change and adopt new technology is the Rules of Professional Conduct. We need to know that the “cloud” is a safe place to store information and transfer our files in a way that protects our clients’ sensitive data. Rather than learning and implementing new technology, many of us find it easier to keep doing things the way we always have. But the coronavirus pandemic will not let us do that anymore.

While the rest of the world was changing the way it was doing business well before the pandemic began, the legal profession preferred a more tried-and-true approach and was slow to take on available technology. We knew change was coming, but we just could not give up our old WordPerfect, even when nearly every other business in the world used Word. In March, the risks posed by COVID-19 accelerated the need to change the way we practice law. It forced the legal profession to take giant steps into the future. Lawyers rapidly switched from our offices to working remotely, with most of the staff at home and only a skeleton crew of essential workers to keep the server, copiers, scanners, mail, and computers running. This changed our procedures for client intake and consultations to minimize or eliminate in-person contact and streamlined our processes so that we could effectively work at home.

Our Inn of Court—the Howell Edmunds Jackson American Inn of Court in Jackson, Tennessee—recognized the sea of change as well and the resulting profound effects on the legal profession. We resolved to be part of the solution. Although our Inn canceled its April and May meetings for the safety or our members, our leaders knew that we had to find a way to help our members cope with this upheaval in the practice of law.

Our Inn rapidly pivoted from in-person meetings to remote meetings. Through hard work of some of our more technologically inclined members and technology consultants, we offered three webinars for our members on how to practice law in the time of coronavirus. The first webinar had our judges and city mayor participate in a panel discussion of how the courts and the city would be operated remotely. It included a forum for members to ask questions.

The second webinar sought to give lawyers the tools needed to set up an office at home. We provided information and recommendations for equipment, considerations regarding staff, and general information on how to proceed with virtual mediations, hearings, and depositions. The final webinar provided more technical information, which included a Zoom professional, a legal security professional, and an IT professional.

Perhaps not surprisingly, we had the same or better attendance at each of the three webinars than most of our in-person meetings. Our members were interested in the information and happy for the Inn to help. And with the value our members received from the virtual meetings, our Inn decided to donate the costs of the canceled meetings to local food banks. Our members were pleased with the outreach our Inn provided to help our community.

Now we are hurtling forward into a brave new world. The Tennessee Supreme Court and the Western District of Tennessee have taken measured steps to reopen the courts safely, including such changes as modifying the number of jurors in a state civil trial from 12 to six and limiting peremptory challenges in criminal cases.

Courts are not yet fully opened. There are restrictions on who can appear in person and strong suggestions that witnesses appear virtually by video. At some point down the road, more and more restrictions will be removed but not without some critical alterations. And with those alterations to practice and procedure, lawyers are having to reassess cases and adopt new strategies to fit these changes in the judicial system. Nevertheless, we can be certain that many of the changes brought by the pandemic are here to stay.

During this pandemic, we have learned a lot about the practice of law, our leaders, our staff, and ourselves. First and foremost, we have learned that even when there is a pandemic and we cannot meet in person, our courts will be open for business. The Tennessee Supreme Court conducted live video conferencing oral arguments. The United States Supreme Court conducted oral arguments live on YouTube. Our chancellor held Zoom hearings and many of us have been in virtual holding rooms waiting for our cases to be called.

In our federal court, the judges conducted some criminal matters, such as report dates, change of pleas, and a few sentencings, remotely. As the local federal holding facility is in lockdown status, attorneys were unable to sit next to their client during these hearings. Even with the use of technology, however, these proceedings were more cumbersome when there was need for defense counsel to personally talk to the client or witness testimony. Yet, the court continued to conduct the hearings during the crisis. There are many other examples of our leadership embracing technology that is not always easy (and maybe not as good as in-person) to make sure that the justice system does its job and that we remain safe.

Lawyers learned that we could work remotely and sometimes even more effectively. For example, in our practice, we wanted to make sure we interacted with our staff daily to stay connected. This was in part to ensure that we were getting things done from home but also to keep the human connection. So, one group of three lawyers and their shared secretary and paralegal began holding daily Zoom meetings first thing each morning. They discussed and triaged the items that needed to get done for the day and assigned a to-do list to each person.

In the past, we have always wanted to have these team meetings but were never quite able to accomplish it. It is often harder to meet in person due to various circumstances, but the ease of a quick Zoom meeting and flexibility of each of us being in front of a computer with access to cases made these virtual team meetings very productive. Reflecting on the virtual team meetings for the past two months, we realized that these meetings make us more efficient as a group and we get more done. Even when we are all back in the office, this team may still conduct these Zoom meetings to plan our day because we have realized that working together is how we work best for our clients.

There is no question that we are going to look back on where we were before COVID-19 with nostalgia—when we would shake hands, print copies of cases, have paper files, sign documents by pen, and meet in person with our clients. But it is likely that many of us have realized working remotely works. And, some will keep working remotely.

We also learned that lawyers do not need a building to practice law, and your office does not need to be on Court Square to be successful. In fact, maybe the opposite is true. Clients are finding attorneys on the internet and basing their decisions on who to hire on webpages and reviews—much like choosing a restaurant or buying a product from Amazon. Before the pandemic, many lawyers were hesitant to believe that clients were finding lawyers this way and thought that a nice office near the courthouse was a requirement to be a successful lawyer. But now we know that is not the case. Mitigating the risks of COVID-19 forced us to open our eyes to what was happening in the world and how our clients look for us.

Being able to work remotely has also changed the geographic boundaries of practicing law. For example, we have frequently noticed 100 percent attendance at virtual board meetings, where we serve as counsel. We surmise this is because being able to hop onto a Zoom call or conference call is much easier than driving somewhere for a meeting in person. We have noticed this to be true of partners’ meetings and even meetings with clients.

We have realized that we do not need to be in the same room to have these meetings and our time can be better spent without traveling. This means that our geographic practice area is bigger. If clients do not need to pay for us to drive two hours to court, we can efficiently and effectively represent them in places farther away. This means we are able to serve more clients in a more affordable way. It is unclear what effect the geographical expansion will have on small town lawyers and whether those lawyers will adapt to the technology as quickly as the big firms. It remains to be seen whether these changes will allow solo and small firm practitioners to compete more effectively with larger firms. But it seems clear that many of these changes are here to stay and those who adapt and adopt them are the ones who will have the most successful and satisfying careers.

At this point, there are more questions than answers. We do not know if there will be a second wave of COVID-19 infections. The medical conclusions about the virus are changing daily as to what is needed to be safe. This in turn causes the judiciary and our leaders to have to make changes that affect how courts are run. These changes affect the way we analyze and handle our cases. Our courts are in the process of developing further procedures for continuing to reopen the courthouses and establishing protocols for protecting court personnel, juries, attorneys, litigants, and the public in all types of proceedings. Of course, this will cause some retrofitting of courtrooms to meet the needs of a particular hearing and all the attendant personnel who will be involved. Remote hearings will likely be more commonplace. Less personal or direct contact on a routine basis may become the norm. Obviously, jury trials will return more slowly, operating in a trial-and-error mode to see what works best.

The practice of law will undoubtedly adjust by continued use of remote depositions and mediations, as well as hearings beyond use necessitated by the pandemic. Likewise, attorneys will also be given back time to handle other matters or possibly have some free time to devote to other endeavors because of less traveling. The ultimate outcome on how courts and the practice of law will be affected remains to be seen. However, with this pandemic and any that may follow, the legal system must be prepared for the present challenges and those to come. Experience in this situation will be a good teacher for future tests. Regardless of what happens from here, we know that we can move the wheels of justice forward even from the comfort of our own homes.

On the side of civility and professionalism, while keeping us physically apart, this pandemic has brought us together in many ways. It is a shared experience we have, which has revealed our common humanity. We have seen the human side of our profession on Zoom hearings that show the inside of our colleagues’ houses as they sit in the kitchen while video conferencing, sometimes with dogs barking or children laughing, crying, or simply seeking attention. This has brought us to the realization that Inn of Court members already know—getting to know each other on even a limited personal level through Inn meetings and Zoom calls builds and strengthens our professional relationships.

These common human ties that we share allow us to advance the practice of law to the highest level of integrity, ethics, and civility. We have had to work hard on our patience with technology, clients, and each other because working remotely is not easy. But we can do it, and that shared experience unites us as a legal profession.

Sara E. Barnett, Esquire, is a member with Spragins, Barnett & Cobb’s Litigation Department; Jonathan O. Steen, Esquire, is a trial and appellate lawyer with Spragins, Barnett & Cobb; and Judge J. Daniel Breen is a senior judge on the U.S. District Court for the Western District of Tennessee. All three are members of the Howell Edmunds Jackson American Inn of Court in Jackson, Tennessee.