I have written this column for many years. During the course of that time, I encountered and discussed numerous issues with you. On occasion, I have done my best imitation of Nostradamus, sticking my head into the future and prognosticating about how it will appear. As I sat down to write this column, I felt that I should put on my Nostradamus hat and talk about the future that I see imminently on the horizon.
Over the 73 years since my birth, I have acquired a substantial amount of experience. I learned that while we always seem to have a paradigm, the paradigm does not remain stagnant. I believe we have reached a point in the evolution of our society and the practice of law that requires revisiting the operative paradigm. In that process, we need to recognize and acknowledge the new paradigm that has evolved and look at how to go about adopting it and thriving under it. In saying that, consider yourself advised that whether you choose to acknowledge it or not, we live in a time of changing paradigms. Playing ostrich will not preserve the previous paradigms. They have commenced their trek along the Trail of the Dodos (or the Dinosaurs, if you prefer). As Bob Dylan might have said, “the paradigms they are a-changin’!”
To keep the horseless carriage in front of the trailer, let’s start with the outgoing (gone?) paradigm. That paradigm starts from the premise that, with the exception of such things as court appearances and deposition appearances, law works best when practiced from a brick-and-mortar office. When I started practicing law, all the tools of the trade—library, typewriter (yes, I am that old), copy machine, and support staff—lived and worked inside the brick-and-mortar office. Attorneys rarely left that venue to work. The brave soul who endeavored to practice outside the office (other than by appearing in court or attending a deposition out of the office) operated at a significant disadvantage. That attorney had to work without the normal entourage of support staff or the normal equipment accoutrements of the office. In those days, cell phones had not yet come onto the scene; when we traveled, we connected to the office using the phones in hotel rooms or pay phones. For those of you who may never have seen one of those, the world used to be filled with telephone booths that operated after you inserted one or more coins to kick them into gear (hence the name “pay phone”). You could, for a substantial amount of money, acquire a small radio station for your vehicle that we called a “car phone.” The car phone took up a hefty portion of the trunk space in your car and had very limited utility as it functioned on open stations that anyone with a car phone could join. Back in the day, we would have referred to it as a “party line.” Needless to say, that structure rendered it almost useless to attorneys with respect to any confidential matter.
During the first 20 to 25 years of my practice, we went through a paradigm shift as a result of what I call the technological revolution. By that, I mean that the advances of technology made it feasible (although not yet facile) for attorneys to function with reasonable success and efficiency while working outside their firm’s office facilities. Empowered by those advances, some of us dared venture beyond the confines of our office space and work from a variety of locations for many different reasons, ranging from convenience to necessity. We became Road Warriors. As we did, we became the advance troops for that paradigm shift.
Technology continued to advance at an astounding rate, reflecting growth by geometric rather than arithmetic proportions. We got word processors and fax machines, then desktop computers, then portable (suitcase-sized luggable) computers, then more portable computers (heavyweight laptops), and ultimately really portable computers (lightweight laptops), cell phones, iPads, and more. The expansion of the Internet allowed us access to vast online libraries for legal research. The new technology made us more efficient in the office and more capable of practicing effectively and successfully from outside the office. Each evolution of the technology we used brought us lighter and more portable—but substantially more powerful—equipment. As we adopted and employed the new technology, we fueled the continuing growth of the new technology, the introduction of more and better hardware, more and better software, and ultimately a viable, functional Internet replete with service providers and providers of services to ensure that we could access the Internet almost anywhere and work efficiently and effectively wherever and whenever we could access the Internet.
The bourgeoning growth of technology over the last 25 years made the life of the Road Warrior increasingly easy. We developed the ability to practice in or out of the office with virtually the same level of efficiency and effectiveness. As it grew easier to work out of the office, more and more attorneys chose to do some or all of their work outside a traditional office. With the assistance of that technology, a great many attorneys found themselves comfortable working in that environment, thereby blurring the lines between an attorney practicing law in the traditional brick-and-mortar office environment and what I like to call the Road Warrior.
By 2019 we reached the point where the new paradigm had already started to advance again toward yet another changed perspective. Oddly enough, one of those changes went a bit against the grain: We started doing court appearances from our office or some other location rather than leaving the security of our office to go to the courthouse. Mostly we did that by telephonic appearances, even though we had the technology to do video appearances.
Under the newly developing paradigm, attorneys could work outside the office almost as easily as they could work inside the office. The number of attorneys working outside the office (Road Warriors) increased both in absolute numbers and as a percentage of all attorneys.
Then COVID-19 came into our lives and shut down most of our traditional operations. Necessity continued to serve as invention’s mother, and in the advent of the pandemic and ensuing lockdown, we moved hurriedly toward the adoption of videoconferencing technology for almost everything. CLE classes shifted to online presentations, and conferences and bar association meetings, client meetings, depositions, arbitrations, mediations, even courts moved to develop an online structure that allowed us to continue to operate while socially distanced and with reduced risk of exposure to COVID-19. Many attorneys found it convenient (or necessary) to work from home, and technology made that possible, if not easy. Attorneys who did not already know it, like many other professionals, quickly learned that they could work from home with substantially the same efficiency as they could from the office. As we used primarily portable technology to make practicing from home feasible, many attorneys learned during the COVID pandemic what dedicated Road Warriors had known for some time: We could easily relocate that same technology to vacation homes, hotel rooms, pretty much anywhere we could get a reliable Internet connection. Further, with that relocation we could set ourselves up to practice law easily, comfortably, effectively, and efficiently.
We could say that the adaptations made to accommodate the COVID lockdowns should have a short lifespan that will terminate at the end of the pandemic. Reality and common sense suggest otherwise. First, it does not look like COVID will go away anytime soon. As I write this, countries are closing borders again, and cities and states are adopting protective measures ahead of the anticipated surge in cases due to the Omicron variant now moving to shove the Delta variant off center stage. It appears more likely than not that COVID will continue to subsist in some form for many years to come, vaccines notwithstanding. In all probability we will end up getting COVID vaccine shots annually (or more often) predicated on the prevailing variant each year. Likely, we will continue to wear masks in many venues and, in particular, when traveling. Social distancing and hand-waving acknowledgments will continue to replace the traditional hug and kiss for many. As a result, we can expect that concern over COVID infection will continue to fuel the paradigm change by encouraging people to work outside the traditional office (most likely from a home office) and use videoconferencing as a primary communications tool for client meetings, depositions, conferences, CLE, and court appearances.
We have seen more and more attorneys increase their comfort level with out-of-office technology and video appearances. We have learned that such arrangements offer the ability to work effectively and efficiently with considerably greater convenience than a trip to the courthouse or to another location to take a deposition. You should not anticipate that attorneys will give up these conveniences or that clients will want them to as, by doing so, the attorney will spend a greater amount of time traveling to the court for an appearance that accomplishes little, if anything, more than what would have occurred as the result of a video appearance. Because many attorneys bill their time on an hourly rate, the more time the attorney spends traveling to the courthouse and waiting for the clerk to call the case, the more expensive the litigation becomes for the client. Conversely, for those who do not bill on an hourly basis, the value of that time comes out of the attorney’s pocket.
While COVID served as a driving force behind the rapid conversion from the old to the new paradigm, our appreciation of the practicality and efficiency of the technology will keep the conversion moving along well after COVID subsides.
Under the new paradigm, many, if not most, attorneys will continue to work remotely, conducting substantial portions of their practice from venues other than the traditional brick-and-mortar office. Whether they do that for health and safety reasons, economy, or convenience will not make much difference. That they do it, for whatever reason, will serve as the heart of the new paradigm of legal work: Wherever, whenever, however. I predict that, going forward, we will consider the lawyer who exclusively works in a brick-and-mortar office the outlier. The majority will do work outside the brick-and-mortar office, meeting the long-standing definition of a mobile lawyer or a Road Warrior. Going forward, we will acknowledge the new paradigm and consider most lawyers Road Warriors. In the words of Bob Dylan:
The line it is drawn
The curse it is cast
The slow one now
Will later be fast
As the present now
Will later be past
The order is rapidly fadin’
And the first one now will later be last
For the times they are a-changin’
