Weathering the Storms and Anticipating Post-Pandemic Changes

Altering the Face-to-Face Lawsuit

Now more than four months in, working remotely seems to be a piece of cake for many of us. There is, however, an increasing sense that this pandemic is forcing us to address issues that many of us thought we might be able to push off onto the next generation. During the last five years, for many, the rise of social media has diminished the need or desire for face-to-face socialization. In much the same vein, the rise of COVID-19 may be forever changing the face-to-face economy and, along with it, the face-to-face lawsuit.

During the next several months, out of necessity, we will be struggling with formulating improvements to a legal system that has functioned perfectly well for hundreds of years and is, therefore, understandably slow to change. I think about the seemingly interminable efforts to craft rules to allow for service by fax or email, or the fact that there are court systems that have just now started accommodating electronic filing. The need for innovation and adaptation that the COVID-19 crisis is thrusting upon us is more urgent than our profession historically has been suited to manage.

Some are looking at the aftermath of this health emergency as a chance to radically change the legal system; not just grafting technology onto old ways of doing things (automation), but using technology to help do things that we have never been able to do before (transformation). True transformation of the legal system by distinguishing courts as a “service” from courts as a “place,” for instance, may be in our future, but for now, we need to learn to do the old things in a new way. It is time to face the future.

For that reason, the other side of the COVID-19 pandemic presents an opportunity to shape the future of the legal profession and the process for dispute resolution in a modified face-to-face economy.

A Second, Enduring Pandemic Reemerges

The murder of George Floyd at the hands of the Minneapolis police has raised the collective consciousness of a second pandemic, the outbreak of which began centuries before COVID-19: racial inequity and social injustice. As a gay man who has actively participated in the gay rights movement, I am haunted by my observations about the prior roller coaster to achieve civil rights for Blacks and equality for women in the United States. Experience fuels my fear that we will again become complacent with our small victories and stop demanding equality way too soon. The opposition is counting on us repeating history. I am often reminded of the line attributed to Dorothy Kenyon in the movie On the Basis of Sex when she tells Ruth Bader Ginsburg that she needs to look to her daughter’s generation if things are going to change:

Equal Protection was coined to grant equality to the Negro, a task at which it has dismally failed. What makes you think women would fare any better? . . . You should look to her generation. They’re taking to the streets, demanding change, like we did when we fought for the vote. Our mistake was thinking we’d won. We started asking, “please,” as if civil rights were sweets to be handed out by judges.

Not this time. Loving our country does not mean that we cannot protest and demonstrate in order to make it better. Respect for the rule of law does not mean that we likewise cannot protest and demonstrate when it fails to protect everyone equally. In fact, it would be unpatriotic not to demand that we correct the imperfections in both.

I feel an incredible sense of relief that a broader group of Americans is finally listening about racial inequality. Too few people have been carrying the weight of the anti-racism movement on their shoulders. Those of us who have soothed our conscience and felt good about ourselves for “being” anti-racist but who have remained silent or passive needed to be called out. However, it seems almost unimaginable that we could solve or even effectively address our legacy of racial injustice under normal circumstances; what are our chances during a global health pandemic when our sense of normal has been turned upside down, our emotions are raw, our tempers are short, and our political differences have turned personal? Shouldn’t we just put this off until we feel more like ourselves? No! That’s what we have been doing. We cannot put this on the next generation. Like COVID-19, the other side of the racial inequality pandemic presents a unique opportunity to shape the legal profession and the process of dispute resolution to treat Black people more fairly and to achieve true racial equity and social justice.

How Much Change Can One Person Take?

As if all this change weren’t enough, I changed law firms one year ago. I became a partner at Jones Day on August 1, 2019. I left my prior firm, the only firm I had ever worked at (and a wonderful firm), after 30 years, because I was increasingly troubled by the evolution of the legal profession. I had come to assume that all law firms had lost touch with that sense of honorable purpose that inspired me to become a lawyer in the first place. In short, my assumption was scuttled when I discovered Jones Day. My daughter says Jones Day saved me.

That change after 30 years has given me a new perspective about change more generally. I believe we could not be at a better place and time to change the world. And there is much to be done. To start with our judicial system, we will need to change procedural rules and develop new standards and guidelines for judges and litigators in order to adapt to a new way of resolving disputes and trying lawsuits to address the change resultant from both pandemics. We will also need to recognize and participate in the larger societal changes that are required to effectively address both pandemics. I encourage you all to play a prominent role in crafting these improvements, lest they be developed by others who may get it wrong.

Opportunities for Change

I began my term as chair of the ABA Section of Litigation, the largest organization of litigators in the country, on August 1, 2020. There is a certain synchronicity between the challenges we are now facing and the theme my managing directors (Dawn Du Verney, Ruth Bahe-Jachna, and Marty Truss) and I developed for the upcoming bar year over 12 months ago: RESPECT (Respect for the judiciary, respect for each other, and respect for ourselves). Nevertheless, some have communicated with me conveying their sorrow that my year has been ruined by the coronavirus. In truth, I feel lucky. The Section of Litigation historically has been the origin of most new rules of procedure and evidence, as well as standards of conduct for litigators. It is also the leading national organization dealing with issues that are unique to specific substantive areas of litigation, policy and self-governance, professional responsibility, and access to justice. Working together, we can ensure that this unprecedented opportunity to modernize and improve our legal system is not wasted. I certainly welcome any of you to join me in these efforts.

As a final thought, I would be remiss if I didn’t recognize and acknowledge the anguish and despair many of us are suffering as we deal with the personal impact of these two pandemics and try to prepare for an uncertain future. As we begin to contemplate what’s next, and we fight the urge to feel sad or hopeless or overwhelmed in the face of change, I share here a thought that I read at some point when I was working through another Blursday and struggling to remember what I was supposed to be doing next: If we wait for things to calm down or return to “normal” to be happy, we’ll be waiting forever. As my father told me every time I started feeling sorry for myself, happiness is now. So let’s take a moment, in the middle of the mess, and count our blessings today. Remember your Shakespeare: “Joy’s soul lies in the doing.” Let’s get to work.