August 27, 2020 Articles

Experienced in Upheaval: Class Action Practitioners Can Be Valuable Resources During COVID

Lessons learned from years of adapting to changes.

By Martin Woodward

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Months into the COVID-19 pandemic, society is still reeling. Uncertainty looms for everyone, in matters both large and small. Nobody can be faulted for feeling unmoored or anxious. Yet, as class action practitioners, our professional experiences give us a unique perspective on coping with wholesale changes to an everyday routine. For that reason, we are particularly well suited to model for others outside the class action bar how to address and adapt successfully to such a major disruption.

Consider: If you have been practicing for any appreciable amount of time, chances are you have already lived through at least one development that, when it occurred, had you actively questioning what the future may hold for you. Maybe it was state-level tort reform legislation that literally changed the rules of class action practice. Maybe it was the passage of the Class Action Fairness Act, giving you an abrupt introduction to the world of federal courts just as you had mastered your state court procedures. Or perhaps it was the issuance of a landmark Supreme Court opinion like AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), or Comcast Corp. v. Behrend, 569 U.S. 27 (2013), or Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), that you instantly knew would have a profound effect on your practice and sent you scrambling to learn all you could about arbitration clauses or damage models or Article III standing, lest you find yourself out in the cold in the brave new world.

Looking back on momentous developments like these, we may have forgotten how significant and disruptive they felt initially. But each time, we instantly recognized that a lot would be different, from the impact on our clients to our litigation strategies to possibly our livelihoods.

And here we are. We are still seeking justice for our clients in consequential disputes involving masses of people. The drama of the big moment when, suddenly, everything was going to be different has long passed, and although we are assuredly doing many things differently, we are still doing them. The sky didn’t fall, the sun kept rising, and we rose to the occasion by adapting.

Maybe the pandemic isn’t fairly comparable. But even though it is not itself any sort of alteration to substantive or procedural law, COVID-19 has drastically impacted many aspects of our practice, and we still don’t know the full extent of the changes it may bring. Some of us may be thriving in the forced isolation of remote home offices, while others may be pining for the more dynamic firm environment. A lot of us may be loving the cost effectiveness and efficiency of depositions and hearings via videoconference, while others may be frustrated by their limitations compared with the live experience. Some of us are even grappling with issues such as to how to properly notify a class of a fairness hearing that may or may not be held virtually. And we are all wondering—at least to some degree—whether and when things will go back to how they were before, or whether some of what COVID hath wrought is, in fact, worth keeping. Which is to say, we are all looking for the best way forward in light of changed circumstances.

And, on some level, we have become very accustomed to thinking like this merely by having forged ahead as class action practitioners through immensely consequential changes to our professional world that few other lawyers (or other professionals in general) likely experience—especially with such frequency. That makes now a perfect time to reflect on how past epic changes affected you, what you were most concerned about when they materialized, and—most importantly—how you coped. Those of us who represent class members may recall having to push the limits of our creative thinking to adapt to various unexpected changes in the law, while those who defend class actions may remember the challenges of counseling and guiding clients through a suddenly altered landscape. But, whatever your situation, you absorbed the change—and the older among us have experience doing this every few years.

This is particularly valuable experience, especially for these times. And it has application not only for us as class action practitioners but also for clients, friends, neighbors, family, and anyone we connect with. If we allow ourselves to reflect on the weighty changes in our professional lives we have not only endured but overcome, we will find that we have something valuable to offer others beyond legal advice. For just as this small community of lawyers has shown a special affinity for especially complex litigation, we also have—whether we knew it or not—become accustomed to the kind of upheaval others may never experience in their professional lives. If we think about and embrace these experiences, perhaps we can be important resources to those in our lives who are much less used to waking up to a drastically changed world.

Martin Woodward practices at Stanley Law Group in Dallas, Texas.


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