The COVID-19 pandemic is a worldwide crisis of epic proportions. It has created enormous challenges, some of which are apparent, such as health and economic impacts that are without equal in our lifetimes. More challenges undoubtedly await us, some of which we may not even imagine. On the other hand, the crisis may present opportunities for us to learn and to improve in our personal and professional lives.
“The Chinese use two brush strokes to write the word ‘crisis.’ One brush stroke stands for danger; the other for opportunity. In a crisis, be aware of the danger–but recognize the opportunity.” – John F. Kennedy
President Kennedy may have exercised some poetic license in that quote, but it serves as a useful rhetorical device here. In short, out of a crisis can come opportunities.
The pandemic has and will continue to impact the practice of employment law, particularly for attorneys like me who represent employees. Some of those impacts may be good for our practices over time; in any event, they will change how we work – whether we like it or not – especially the use of technology.
During the 40+ years that I have practiced law, technology has radically changed the way we practice. It’s a long list: word processing, facsimile machines, voicemail, desktop computers and laptops, computerized legal research, cell phones and smartphones, the Internet, email, cloud storage, e-discovery, e-filing, and webinars, and the most recent disrupter… videoconferencing.
Sure, many of us video-conferenced occasionally before COVID-19. At Outten & Golden, we used it for meetings between and among our several offices for years, though we rarely used it on a routine basis for conferences with clients or small meetings between lawyers.
Now, videoconferencing is everywhere and all the time… a byproduct of working from home. I now have eight videoconferencing platforms on my iPad. As Plato observed in a very different time and context (long before smart devices), necessity is the mother of invention.
So, out of necessity, our firm has adopted videoconferencing to communicate, ranging from one-on-one chats with clients all the way up to all-hands town hall meetings. It’s easy, convenient, and inexpensive. The sci-fi of my earlier years in now a reality.
Many professional and legal education conferences have been canceled or postponed. Out of necessity, hosts and organizers have figured out how to produce these events virtually. Of course, videoconferencing can never replace the positive aspects of true face-to-face communication – especially the social aspects. On the other hand, people can still participate actively – maybe even more so, given the ability of online meeting platforms to offer text-based chat and screen-sharing features along with audio and video. And the cost benefits of videoconferencing are substantial when one considers the time and expense of travel, including hotels, trains, planes, and automobiles. (Unfortunately, videoconferencing cannot replicate a meal at a nice restaurant with a colleague or client). Outten & Golden is a founding member of the Lawyers International Network for Employees and Executives (LINEE), and we recently realized that our group of labor and employment lawyers around the world can conduct regular Zoom discussions at no cost – something unimaginable just a short time ago. Other international bar organizations undoubtedly will seize that opportunity also.
The pandemic, together with various states’ lockdown orders, has made it impossible or impracticable for us to engage in many of the in-person activities one normally associates with a busy employment litigation practice, such as mediations, depositions, arbitrations, agency proceedings, court conferences, and court hearings. Out of necessity, lawyers, judges, administrative agencies, ADR providers, court reporters, and stakeholders in the process have demonstrated how creative and flexible they can be in adapting to the “new normal.”
Speaking of ADR, many neutrals have figured out how to conduct effective mediations and arbitrations using the now ubiquitous Zoom platform. They are eagerly encouraging practitioners and parties to “just give it a try,” and they are offering training sessions to show how it can be done. High up on the lists of plusses, virtual ADR proceedings involve social distancing by default, keeping participants safe by avoiding the health risks of physical proximity. There are also cost savings (less travel) and efficiencies (freeing up time).to
Of course, some naysayers will insist that this new-fangled approach won’t work, but early experiences indicate it will. Obviously, those of us used to the conventional approach will miss the opportunity to be in the presence of other participants, observe body language, and have impromptu caucuses and sidebars. Interestingly, the Zoom platform (with or without a videographer) goes a long way toward addressing those concerns. Zoom’s breakout-room feature seems tailor-made for mediations; litigants and their lawyers or other combinations of participants can have separate, confidential conversations during the course of the mediation without having to delay the process by signing out and logging back in.
Virtual depositions are becoming a more common experience as well, allowing witnesses, counsel, and court reporters to attend from different locations. A videographer can control the process, including the display of the right exhibit at the right time to the right people. Like virtual mediations and court proceedings, cost reductions are significant. As an example, in nationwide or regional class actions, depositions of many witnesses (especially members of the plaintiff class) can be conducted remotely without the expense of lawyers traveling to and staying in faraway places. And the time savings lets lawyers attend to other clients’ needs more quickly, a boost to overall efficiency.
Perhaps the most obvious sign of the times is the use of conferencing technology in the courtroom and government tribunals. Increasingly, these forums are turning to online communications to move cases along, including video case conferences and oral arguments. When the U.S. Supreme Court implemented teleconferences for oral arguments, not only could anyone listen in, but Justice Clarence Thomas (known for never uttering a word) found his voice and actively questioned lawyers on both sides. And a Texas court recently conducted a virtual jury trial! What was until now inconceivable is on track to become a mainstay.
What does all this portend? In my view, the practice of employment law will never be the same. Someday, maybe before I take down my shingle, we will look back on this experience and recognize that some of the changes borne out of crisis and necessity were positive opportunities for improving the practice of employment law and obtaining justice for our clients.
Wayne N. Outten
Chair and Founding Partner