Courting Crisis: Will the Corona Virus Be The Incentive Lawyers Need to Innovate?

My longtime blogging colleague and  co-defendant  Eric Turkewitz recently expressed some hope that the corona virus crisis would serve as a catalyst for needed reforms to New York’s antiquated judicial system.  As Turkewitz wrote long ago in 2008, in-person motions practice, status calls and waiting time wastes $10 million in time for a single court room in single year alone – requiring lawyers to spend time in a courtroom for many matters that can be handled remotely via video-conference, phone or even email.  Fast forward to 2020, and shockingly, apparently little has changed.  But now with our collective health dependent on change, Eric argues that it’s time to adopt these long overdue changes. 

Of course, Eric is right. But what frustrates me is that even courting crisis (pun intended!) does not always suffice to adopt win-win, no-brainer change.  Recall when cloud computing first came on the scene around 2010 prompting ethics regulators to first refrain from approval and then offer it  cautiously.  By that time, solo and small firms had either gone out of business or suffered massive loss of documents due to disasters like 9/11 and Katrina. Yet even though the cloud could have spared many firms from this same fall out after Hurricane Sandy and other catastrophes, regulators fiddled on clarifying the ethics of cloud and virtual offices while again solos and smalls went down in flames  

For a profession that makes a living based on citing precedent, lawyers are remarkably short-sighted when it comes to setting precedent for future cases. Had we advocated for incorporation of technology back in 2008 when Eric Turkewitz first published his blog post, we’d have a system in place to seamlessly deal with corona virus. Now, many of us will scramble, catch as catch can to set up remote working for employees, or to cobble together remote access for depositions and non-essential court hearings. Unfortunately, due to haste, some of these systems won’t work as well as we’d like giving courts and judges further reason not to adopt moving forward, further entrenching inaction.

Corona virus is not the first disaster we’ve encountered as a society nor will it be the last. From terrorism to natural disaster, events unknown to us now lie ahead that may threaten to bring work to a stop or leave us stranded at – or perhaps far from home.  We may also face times of unrest or lawlessness which heighten the importance of lawyers and makes it critical for us to be able to continue business as usual in a time of crisis.   If we don’t – as Eric advocates – use this crisis to create new systems that adapt to these challenging times – then we lawyers alone will be responsible for not merely our own demise but potentially the demise of the rule of law.

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