FROM THE BENCH: Building Community While Working Remotely

My work was my refuge. Despite the monastery moniker, appellate judging is necessarily collaborative. I was blessed with a courthouse full of smart judicial attorneys and engaging colleagues, all readily available to spend time discussing and debating legal issues. Oral argument is energizing. As we are a circuit-riding court, I was able to check in with our trial judges when we traveled to other counties.

Even the solitary parts of the job—research and writing—resulted in work product to share with colleagues during case conferences. One luxury of the position is enjoying deep-dive legal research without worrying whether a client will question all the time spent. Sharing research revelations with others is exciting. I freely acknowledge and embrace this wonkiness.

The Shutdown

Then along came the shutdown. Coincidentally, just a few months before, the Ohio chief justice sent to all Ohio judges a “Judicial Guide to Public Health,” designed to assist courts in maintaining access to justice when an emergency occurs. Within those few months, the “when” became right now. We were facing a pandemic that worsened by the day. We took the book off the shelf, pulled out our disaster plan, and got to work.

I quickly became a technology expert, a public health expert, and a family crisis manager. We tackled the baffling task of quarantining our mail and the paper files we still received from some of our trial courts. We figured out how to adjust schedules to enable staff to take care of their children whose schools had suddenly closed.

As they had their own private offices, administrative staff could continue to work in the building, but we all kept our distance. Almost all the judges and their staffs began to work remotely. Among us, even when we were there in person, we used email or the phone to communicate with each other. We put appellate oral arguments on hold until we could set up videoconferencing.

Zooming oral arguments allowed us to continue to offer that critical piece of appellate advocacy while trying to capture the important dynamic of nonverbal communication that is missed by telephone. Though we never had an attorney appear by Zoom through a cat filter, I was amazed when one lawyer joined for oral argument from his living room, where he had constructed a mock courtroom complete with a lectern and a witness stand.

Video staff meetings also enabled us to try to replicate both the dynamic of and value in face-to-face discussions. For those with remote staff, there were some added benefits. Despite working with one of my judicial attorneys for many years, I never knew he was a drummer until he had to retreat to his basement to take a video meeting, while his kids were upstairs doing virtual school.

Even with the novelty of remote work and all the Jetsons-style technology designed to bring us together, my courthouse retreat from my quiet residence presented me with just another empty space. My outlets and opportunities to be with other people—the gym, the yoga studio, bar association meetings, lectures, concerts, Sunday mass, simple social gatherings with friends—were gone. For my own well-being, I had to figure out how to embrace the social-distancing concept.

It took some time. Slowly, I was able to reach back and recall how I navigated being alone as an only child who spent a lot of time at home solo. I rediscovered my vinyl album collection; I had Amazon deliver a new turntable right to my door. Filling my silent house with music brought me some joy and soothed me as I summoned the strength to finally clean off my husband’s desk. I did virtual yoga, virtual Sunday mass, virtual Inn of Court meetings, virtual judicial conferences, virtual coffees and happy hours, and virtual meetings with my mentees to help them figure out how they were going to finish their virtual classes and take a virtual bar exam.

But virtual life is not real life. The satisfaction of being with others and sharing that experience in three dimensions rather than through squares on a screen was missing. I needed to find something more than blue light emanating from a computer screen to brighten days spent alone.

Then, like Thoreau, I remembered that “an early morning walk is a blessing for the whole day.” It was something I could do outside with a few friends, appropriately distanced. I bought a new bike to replace the one I had received on my 16th birthday. I began to explore the scenic trails that I had not realized were so close to my home.

With restaurants closed, I recalled the fun I had as a teen watching both “The Galloping Gourmet” Graham Kerr and Julia Child on public television when I came home from school. I began to do creative batch cooking on the weekends, to eat healthy lunches at my desk and something other than microwaved popcorn for dinner. I started posting my culinary creations on social media. Those even developed a bit of a following.

The Need for Relatedness

It was not until I was preparing a presentation about professionalism and civility that I realized there is a name for what I was experiencing. I also discovered one explanation for the increase in the incivility in the briefs and transcripts I was reading.

It is the human need for relatedness, also described as “the desire to feel connected to others,” “the need to belong,” and the “need for frequent, non-aversive interactions within ongoing, relational bonds.”

Judge Cheryl Ann Krause and attorney Jane Chong described relatedness in their pre-pandemic Warren E. Burger Prize–winning article, Lawyer Wellbeing as a Crisis of the Profession (American Inns of Court 2019). They observed that “relationships are crucial to lawyers’ mental health, as they are to most human beings.” They offered other important observations:

• The connection between lawyer well-being and civility is intuitive and well supported by the data.
• The breakdown of professional decorum and the deterioration of lawyers’ mental and physical health have been traced to common sources of stress and pressure.
• An uncivil work environment can be expected to harm lawyers’ well-being.
• Conversely, unwellness may negatively affect lawyers’ conduct in a way that contributes to an uncivil environment.

In its 2017 report, the ABA’s National Task Force on Lawyer Well-Being had put it even more simply: “To be a good lawyer, one has to be a healthy lawyer.”

I recently participated in a presentation to the Council of Chief Judges of the State Courts of Appeal on the future of the legal profession. Harvard Law Professor David B. Wilkins set the stage for the panel discussion “Reimagining Lawyering in a World on Fire.” He offered the case for “making sustainable lawyers” in the “new normal of hybrid work,” based on these three key points:

• If the legal profession hopes to continue to attract talented women and men, it must demonstrate legal work provides meaning and a sustainable integration of the professional and the personal.
• This means that law schools must not only teach law students the “core competencies” of their own disciplines but also the “complementary competencies”—financial literacy, a basic understanding of information technology, cross-cultural fluency—that will allow them to contribute to solving the multiplicity of urgent problems at the intersection of law, business, technology, public policy, and morality.
• And these lawyers must in turn bring this knowledge to bear to help judges adjudicate legal cases and controversies that implicate these broader concerns.

The Pros and Cons of Technology

Despite our profession’s need for relatedness, and notwithstanding the isolation that many, including me, experience with remote work, I agree with the professor that technology has had, and will continue to have, a major impact on how we practice on both sides of the bench.

Some of it is for the better. Lawyers can work more efficiently when pretrial conferences are conducted by calls that can be taken at either their office or their home. Clients can attend a hearing or listen to oral argument on their smart phones without losing a day from work. Judges have more flexibility in resolving scheduling conflicts. We can quickly move oral argument from in person to videoconference when a lake-effect snow event closes a courthouse, thereby avoiding the rescheduling headache and delay in the resolution of the appeal.

As I came to recognize through the pandemic isolation, there are generational differences in approaches and comfort with remote work. Younger staff think nothing of texting each other, even if they are just in the adjacent office. I naturally prefer to walk next door and talk in person.

But, as Professor Wilkins observed, “while this new world has many advantages, as we are all discovering, we will have to find new ways to build community and collaboration online—and even more to avoid burnout (it’s not working from home, it’s sleeping at work!).”

This quandary is revealed in recent data from the 2021 survey of law firm priorities conducted by the National Association for Law Placement Foundation. More than half of the respondents identified mental health and well-being as a top challenge, followed by developing and maintaining relationships between partners and junior associates, and the lack of boundaries resulting from remote work.

Compare and contrast the survey of Northeast Ohio appellate practitioners I conducted in April 2021: 67 percent of the respondents preferred in-person oral arguments; 22 percent preferred remote arguments; and 11 percent responded that their choice depended on the case.

My concerns about increasing incivility and lack of professionalism during the pandemic were highlighted by one respondent who observed, “Ours is a difficult profession; experience teaches that time with other lawyers affords us psychological and moral support. Things work better in person. Remoteness can dilute mutual respect as well as the gravitas of what we do.”

There was some overarching philosophy to many of the responses, summarized by one respondent who wrote:

There is something to be said . . . for the solemnity of entering a courtroom . . . seeing judges assembled on the bench, of feeling the gravity and weight of the courtroom atmosphere. This is especially true for lawyers, who may become too accustomed to appearing before judges. We all need to be reminded from time to time of the gravity of what we are doing as lawyers representing clients whose lives are impacted by what we do in representing them.

In the end, the pandemic simply added another layer—an element of isolation and remoteness—to our ongoing struggle to achieve efficiencies in the delivery of justice and legal services, train a new generation of lawyers remotely, find work-life balance, and foster a more collegial relationship between litigators in an adversarial system.

That cognitive dissonance is endemic to our profession. F. Scott Fitzgerald wrote:

The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function. One should, for example, be able to see that things are hopeless yet be determined to make them otherwise. . . . It is through the exploration of these opposing ideas, or uncertainty if you will, that we come to better outcomes.

While I have yet to resume editing my husband’s memoir, by listening to my younger self I have learned to be comfortable with just being alone. By listening more to my younger staff, I hope to find new ways to build community and collaboration, while continuing remote work without burnout.