Don’t Replicate – Create: How Lawyers Succeed in the New Normal
A week or two before her high school graduation, my older daughter decided to go vegan. To accommodate my daughter’s new eating regime, our family celebrated her graduation at a vegan restaurant which served up entrees like lasagna and chicken parmigiana by substituting nutritional yeast and soy proteins for cheese, eggs and meat. Yet despite the chef’s best effort to replicate traditional fare, the celebratory lunch looked like a gloppy mess and tasted equally unsatisfying.
Hoping to avoid a similar experience at my daughter’s backyard graduation party later that weekend, I opted to try my hand at making the food myself instead of ordering from a vegan caterer. Instead of trying to make creamy or cheesy dishes with non-dairy ingredients (at that time, the smell of nutritional yeast still nauseated me), I prepared foods that didn’t involve dairy to begin with — falafel, pasta salad, vegetable rice paper rolls and guacamole. And I invested in the best quality ingredients to increase my odds of producing an edible result. Ultimately, the spread was a success – all the food was gobbled up or taken home by guests. I’ve even used the same menu in some form or another at other parties since – though my daughter has long since abandoned a strict vegan diet.
I’ve found myself thinking back on my brief experience with vegan cooking and eating now as many lawyers are attempting to use Zoom, the cloud and other online tools to replicate work and networking as we once engaged in those activities pre-pandemic. But for many, these tools fall flatter than the vegan faux-Italian meal that I suffered through years ago. After all, let’s face it: drinking a beer alone at your desk illuminated by camera lights in your face while trying to get a word in edgewise at a 15-person virtual happy hour when your computer audio isn’t delayed just isn’t the same as laughing with the gang in person at a softly lit restaurant table or cheerful, comfy neighborhood bar. Asking staff or law clerks to check in daily from home by video can come across as intrusive or demanding whereas short in-person meetings in the office to hash over issues are somehow less intimidating. Arguing a case by telephone may be more efficient for sure, but lawyers also lose out on the ability to stare down the judge or shake hands with their adversaries at the conclusion of the argument.
Still, my reservations about whether online tools can recreate the pre-pandemic experience doesn’t mean that I believe for a second that we should stop using them. But instead of using tech to replicate our old experience, let’s use it to ameliorate how things have always been done and create an improved experience. Here are some ideas:
• Use Zoom for New Activities Instead of using Zoom for a standard happy hour, use it to interact with colleagues in ways that you never did before. For example, two weeks ago, I sponsored a Coffee + Court event on Zoom, inviting a dozen colleague to join together to listen to an en banc oral argument for an important case in our industry. I opened the call with a preview of the argument and hoped to discuss the results with my colleagues after the argument concluded. Unfortunately (and my bad), the call was hacked midway through – a problem that is easily cured next time with advanced security. But the idea itself made sense – Zoom offered a platform for my colleagues and I to discuss the argument in real time (something we couldn’t have done in court IRL) and I’m hoping to reschedule a similar call in the future.
Zoom can also support other types of recreational activities that you may have wanted to engage in with colleagues but never had the time. From online painting classes to writing thank you notes to cooking classes or watching a law-related movie together, video can help bring colleagues closer in ways that many might not have bothered with when we had the ability to leave the house.
• Zoom for Law Clerks When I realized that my summer law clerk would have to work remotely, I was worried because ordinarily, I’ve gotten better results with my clerks who work onsite. There’s something about the discipline of showing up at the office in business clothes and being able to sit down and review documents side by side that has improved the performance of those who work for me. But I’ve realized that Zoom has advantages too. I can share screens and show my law clerk how to e-file a document, or we can review, markup and edit a document together. Sure, these tools were available before when people worked on site, but it seemed awkward to connect with employees by video when they sit just an office away.
• Zoom and Depositions As I’m aware from my video interviews with 14 solo and small firm lawyers , moving depositions to Zoom has presented a bit of a mixed bag. On the one hand, video depositions save travel time and discipline lawyers to compile documents in advance because they may need to be shipped to the witness beforehand. On the other hand, some lawyers bemoan the inability to eyeball witnesses and read their body language, while others are concerned that opposing counsel may be coaching the witness via a chat bot or text. All fair reminders that Zoom can’t always duplicate pre-pandemic practice.
Still, there’s one way that Zoom – for all of its potential drawbacks – could make litigation practice better: by eliminating the need for court reporters once and for all. Zoom enables lawyers to bypass the need for court reporters, since depositions can be recorded with a click of the button and then transcribed through AI tools like Otter.ai or Sonix.ai . Using Zoom as a one-stop platform for depositions would thus allow lawyers to save on the enormous costs of transcripts in civil cases, which are a barrier for access to justice. If that’s not a huge improvement over the current system, I don’t know what is.
• Alternative Dispute Resolution and OnLine Hearings With so many trials now on hold, many law firms have time on their hands, while many clients are anxious to settle. Though I would never suggest pressuring clients into a lowball settlement at this juncture, there are opportunities during pandemic to experiment with online mediation and alternative dispute resolution – particularly for cases already set to go for trial. Lawyers should work with opposing counsel as well as judges who may want to clear their dockets to explore unconventional ways of resolving cases – such as mini-trials or case presentations before mediators. The data gathered could be used to inform development of new processes going forward.
Online hearings are another substitution that enhance the practice of law. Instead of trapping lawyers in a room for hours to await a status call, lawyers can handle scheduling conferences from their desks and save on travel and waiting time – which reduces costs to clients. Many scheduling conferences don’t even require in person interaction, so moving conferences online doesn’t impair quality, but offers only net benefits.
• Shift Work For the past eight weeks of pandemic, lawyers have found ways to work from home a stop gap measure – and while it’s frustrating for sure, many lawyers are celebrating time regained due to lack of commuting. I’m not suggesting that law firms go one hundred percent remote one hundred percent of the time because many lawyers and staff work more effectively out of the house. But there is a happy hybrid medium that I wrote about yesterday – shift work – where lawyers and staff can segue seamlessly between working onsite and from home just with a few modest scheduling changes. The upside? A more relaxed workforce along with better ability to accommodate clients whose schedules are also changing.
If we move out of pandemic expecting the world to return to business as usual, most of us will be sorely disappointed since the online experience can’t duplicate life as we knew it. But if we’re willing to use technology not to duplicate the old, but to create new ways of practicing law that are even better, we’ll have something as delicious as the vegan spread that I made for my daughter’s high school graduation party to enjoy.