What Professionalism Looks Like in a Pandemic: How We Can Help the Judiciary and Our System of Justice Right Now

The Bencher—July/August 2020

By Laura A. Kaster, Esquire; Justice Helen E. Hoens; and Theodore K. Cheng, Esquire

The most amazing demonstrations of professionalism are the life-comes-first affirming actions of the committed doctors, nurses, EMTs, orderlies, and hospital workers who are risking their lives every day to save the tens of thousands around the world who are suffering most severely from COVID-19. As lawyers, we have a duty to support them by adhering to physical distancing—we must not risk our lives or further endanger theirs. But as members of the Inns of Court, this crisis presents us with a unique opportunity to live out our commitment to “inspire the legal community to advance the rule of law by achieving the highest level of professionalism.”

What does that look like right now?

Courts all over the country have turned their functioning on a dime to protect the judiciary, its employees, and the communities in which they work by closing their doors to all but emergency or priority proceedings and by speedily moving to online processes to the greatest extent possible. But those necessary measures will inevitably create a strain on our courts as many matters, perhaps all but those deemed most essential, are delayed. This delay in the administration of justice cannot be indefinite. An enormous backlog and crisis for the system and for the people who need to have family, business, and all manner of needs addressed, continues to grow. We need to flatten this curve—our curve—to be a major part of the solution.

Many of you may remember a time when professional relations among lawyers meant you picked up the phone and tried to resolve a dispute early on; you kept the dialogue open and civil, and you talked through the issues and shared information as needed. You were not always governed by a discovery calendar or the inflow of matters. We didn’t need to wait to talk to clients about the case until a court date loomed. Here lies an opportunity for us in this crisis. We don’t need to wait for the court system to summon us. The information you have available may be enough to give you a very clear sense of each case and its merits, present value, and risks. By returning right now to that tradition of professionalism and civility, we can safely pick up the phone and invite a discussion with adversaries as well as welcome it from others.

Let’s make it a point to establish “Settlement Mondays” (or weeks or months) until the courts can fully function again. Let’s make a pledge to our fellow Inn members and to our professional colleagues not to view an effort to talk as a weakness or a blink but as a strength and a professional duty. Let’s invite or encourage the use of mediation if the discussion by itself does not result in resolution.

Our system of justice is a very precious part of democracy and of the fabric of our society. We are already committed to support it; let’s act on our commitment right now when it really counts. Please send this plea to your firm, your Inns, your bar associations, and your opposing counsel. Professionalism has real meaning and potential to solve a real and present danger.

Laura A. Kaster, Esquire, is a full-time neutral working in the greater New York metropolitan area and is the immediate past president of the Justice Marie L. Garibaldi American Inn of Court for ADR in Basking Ridge, New Jersey. Justice Helen E. Hoens is a retired justice of the New Jersey Supreme Court, serves as a mediator and arbitrator in New Jersey, and is a member of the executive board of the Garibaldi Inn. Theodore K. Cheng, Esquire, is an independent, full-time arbitrator and mediator working in the greater New York metropolitan area and is the president of the Garibaldi Inn.

© 2020 Laura A. Kaster, Esquire, Justice Helen E. Hoens, Theodore K. Cheng, Esquire. This article was originally published in the July/August 2020 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.