In early 2020, no one could have predicted the impact COVID-19 would have on the world, including the crash course in technology that became necessary to maintain a surviving and thriving appellate practice. This article is a reflection on and response to what COVID-19 forced us to learn about our appellate practice.
To set the stage, I begin with an anecdote about pre-COVID-19 technology glitches, which personally may have helped me get through the scarier and more consequential glitches that arose during the pandemic. I once worked for a judge whose courtroom was quite possibly haunted. Without fail, something would glitch with the computers, sound, or lights during every trial. His refrain became, “Gosh, I love technology. And, I like it more when it works.” And, although I am not a superstitious person, earlier this year, I had a fleeting thought that maybe that courtroom’s ghosts latched onto me and cursed me, too. After my judge retired and another judge took over his courtroom, the haunting continued. Four trials in a row, something would glitch. One time, the power went out entirely and we all sat in pitch blackness until the backup generators came on. That was the first time I began to think that the curse must have followed me…
Cue the pandemic, and now I will tell you about the second time. You see, a few months ago, during my oral argument, the whole audio/video system froze. At the beginning of the pandemic when we learned all oral arguments were going to be virtual, our office warned us not to use our government-issued computers and instead to use the office’s built-in audio/video system with the huge flat-screen TV, fancy cameras, and sophisticated microphones. But, seconds into my opponent’s argument, I heard nothing after, “May it please the Court…” All I saw were the judges’ frozen faces, the frozen timer, and my frozen, perfectly calm face looking back at me. Let me assure you, this was not an accurate reflection of my face when I panicked and called everyone from our office’s IT staff, to the Court, to my Appellate Chief. By the time I was able to reconnect (using my own computer this time, mind you), I had missed the entirety of my opponent’s argument and was left to argue blind. Stop for a second and try to imagine how fun that was for me.
I’m sad to say that all the sage advice provided in the Spring 2020 edition of Appellate Issues would have not helped me. I had done a practice run. Twice in fact. I was standing behind a lectern. I was in my suit, by myself, in a quiet room, and I had muted my microphone. I turned off all of my devices and the dinging noises that came with them. I didn’t turn on the cat-face filter, or any other filter for that matter. Trust me, I would have much preferred to be at the beach like the virtual filter. I kept my eye on the time. (In fact, the time freezing was the first sign of trouble.) What that argument taught me, and the first technology-related lesson COVID-19 has taught all of us, however, is that we are quite resilient. The pandemic did not invent technology glitches, but it made us plan for and respond to them in more adaptive and concrete ways. And it should serve as a reminder that post-pandemic technology will continue to glitch and we will need to apply this resilience in new ways.
The second technology-related lesson COVID-19 taught us is that embracing change in the workplace can lead to improved efficiency and job satisfaction and make practicing law more adaptive for other challenges that may be on the horizon. Last Spring, we were confronted by an invisible enemy. We lost our sense of normalcy. Offices shut down. Travel was cancelled. Friendships and relationships suffered. COVID-19 forced each of us into a tiny digital box on a screen. Like everything else in our lives that was forced to change, so too was our legal practice. Offices resistant to telework realized that it was necessary and effective. In case it wasn’t obvious before, appellate practice strongly lends itself to telework. Aside from an oral argument, there was no real reason to put on real pants. To be sure, it is just as easy to read a cold record and draft a brief in your pajamas as reading and drafting in a suit. It is equally easy to do it while visiting your parents or in-laws. When you’re on the computer, you don’t have to be at your own house.
The value of flexibility in schedules and workstations has been confirmed. Employers should not try to fight the obvious here. A recent Bloomberg article said a survey “of 1,000 U.S. adults showed that 39% would consider quitting if their employers weren’t flexible about remote work.” Flexibility will allow employers to keep their work-force. But with that said, there is joy and brilliance in working with others in person. Going to working lunches, meeting in offices to brainstorm responses and arguments, and simply to be with other humans is something that was dearly missed this last year. I hope we will all accept the flexibility of teleworking more without abandoning entirely the human interaction that appearing in the office in person provides.
Even for those who may turn their practice fully virtual, one judge had great advice. She planned a weekly Zoom lunch meeting with her clerks. That long afternoon lunch meeting allowed each clerk to talk about their cases and get feedback from the judge and other law clerks. Of course, knowing how kind and fun this judge is, I have no doubt that at least half the meeting was spent chatting and catching up. Even in this post-pandemic world, we shouldn’t lose sight of what is important – human connection. Just because we are apart physically, does not mean we need to be apart in all ways.
This leads me to the third technology-related lesson borne of COVID-19. Just because things have been done a certain way for a long time does not mean they can’t be done more efficiently and effectively. This is especially true with respect to workplace communications. Can I take a minute to say the thing that no one wants to say out loud for fear of hurt feelings? Most phone calls can be a text. In fact, you should text first before you ever call to decide whether a call is necessary and when it should take place. Most meetings can be an email. At a minimum, any meeting that doesn’t require direct collaboration with fewer than 5 people should probably start as an email. Not only is there a clear record for later reference, it cuts down on time used for throat-clearing introductory remarks and often repetitive announcements. And, for the love of all that is holy, all Zoom meetings with 30+ participants should be kept under 15 minutes. Unless it is a training that requires a longer time period, that long meeting speaking to the masses can be an email. Remember: Technology is great when it works, and when it is used appropriately, proportionately, and respectfully.
So where do we go from here? As life very, very slowly gets back to normal, we will probably have to start wearing real pants again. We will probably have to wash our hair more often. We will probably have to get our kids and our dogs used to us not being around as much. We should reflect on what we have learned, however, and avoid reverting to pre-pandemic technology. We should be using virtual meetings, virtual collaboration software, and track changes (do you know that some people STILL can’t use track changes?) to make our work more efficient. No one wanted a global pandemic to jump start our foray into using cool new technology to assist our work. But here we are. Let’s not forfeit the strides we have made.
Finally, this brings me back to technology superstition. Pandemic or not, you had better believe I will always have a back-up, and a back-up to the back-up, for the next time the office audio/visual system decides to take a vacation (probably to that virtual beach) in the middle of my argument. I will have the phone numbers and emails of the courtroom administrator, court IT personnel, my supervisor, and office IT folks on speed dial. I hope I’ll never have to say, “Can you hear me now?” again, but if I do, COVID-19 will have taught me to panic slightly less.