Bob Dylan has been warning us all for over half a century – change with the times or “you’ll sink like a stone.” But attorneys are a stubborn and constant lot. We cling to traditions and so-called “best practices” even when newer and better alternatives present themselves. We are often criticized for being resistant to change. The pandemic forced our industry to move forward into the future in ways that many had doggedly resisted for years. Much of our lives, our offices, the courtroom, the client-market, our day-to-day interactions, and thus, the practice of law itself – may never be the same. It is no secret that the legal profession has been thought of as having a protectionist mindset that sees innovation as a threat. Even before the pandemic, attorneys were being challenged on their stance against new methods for delivering service and models for practicing in the modern world. However, the pandemic highlighted, in ways no studies or committees ever could, the fundamental shortcomings of the legal system as it was. A rigidly structured guild system of courts and services delivery, designed by lawyers for lawyers as their exclusive domain. The old system simply was not up to meeting the challenges of a world that demanded agility and flexibility. The pandemic forced the embrace of innovation on an accelerated scale and there is no going back.
For years prior to the pandemic, in part because of the access-to-justice crisis and the growing numbers of self-represented litigants, courts have been overwhelmed by demand and underfunded to deal with it. Consumed with the struggle to keep up with this demand, courts were unable to formulate the innovations that would help them keep up. But with the pandemic, there was a fundamental rethinking and restructuring of the courts. We found ourselves in a moment when the courts could no longer function as the world paused even while the need for the service did not abate. Courts adapted in the short-term allowing for telephonic and video appearances and offering more online services. And as the short-term adaptations took root, the courts and practitioners realized that the adaptations were not only solving problems but were increasing efficiency and reducing costs. These short-term adaptations will inevitably lead to long-term changes.
All of the innovation, remoting in, videoconferencing, and lack of in-person appearances provides the benefits of efficiency, reduced cost, and ease of access. However, it is not without obvious drawbacks. A critical component to the practice of law is the development of relationships with other attorneys and the building of a reputation with the court. Without personal interactions, it can be difficult to foster positive relationships. We have lost the ability to discuss a case in person before or after a hearing in order to try to resolve ongoing issues or reach a resolution. Remote practice will inevitably translate into a possible slide towards being inflammatory, inconsiderate, and indifferent to attorneys who we can keep at a distance. When we do not have to look each other in the eye as we walk out of the courtroom, advocacy can take a turn towards admonishment and insults.
Now, more than ever, we have to be proactive in communication with each other. We have to put ourselves out there. We will have to recommit ourselves to professional courtesies and ethical practice. We will need to collectively be mindful of the impact of these innovations and learn the ebb and flow of the changing tide. As Bob said, “We better start swimmin’ or we’ll sink like a stone, for the times, they are a changing’.”
About this article: This article was originally published in the Communiqué, the official publication of the Clark County Bar Association, (August 2022). See https://clarkcountybar.org/member-benefits/communique-2022/communique-august-2022/.
About the author
Nedda Ghandi, Esq. is a partner with Ghandi Deeter Blackham Law Office. Nedda’s primary practice area involves bankruptcy for both individual and business debtors. She also litigates complex family law cases that often involve family-owned businesses or complicated financial battles. Nedda serves as the president of the Clark County Bar Association through December 2022.
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