Measure a Year
How the COVID-19 pandemic is reshaping the practice of law
Written by Natalie Friend Wilson and Joshua J. Caldwell
The second act of the musical Rent opens with a song called “Seasons of Love,” which asks the characters and the audience how one can “measure a year.” Twelve months into the COVID-19 pandemic, how do we measure the changes that the last year wrought on our profession and our communities?
In March 2020, Texas schools announced that they would be closed for an extra week following spring break. Courthouses all over the state paused all but the most urgent proceedings. Emergency orders at the state and local levels ordered all “non-essential” businesses closed. At the time, most people thought we would “stay home, stay safe” for a short interlude. “Two weeks to flatten the curve” was the rallying cry.
But the weeks dragged on, and not only did the public health crisis fail to improve, but it also got worse. In the summer, the novel coronavirus didn’t disappear. In the fall, many of our children didn’t go back to their classrooms. In the winter, we didn’t celebrate the holidays or ring in the new year with friends and relatives. Almost a full year into this adventure, there may be light at the end of the tunnel, but it is undeniable that our profession has been permanently altered.
Perhaps the starkest and most immediate change was the switch to full-time remote work. While many lawyers had the capability to work remotely during non-business hours or while traveling, working remotely full-time is a beast of another nature. The transition to full-time remote work presented technical and logistical challenges as we tested the limits of our broadband capacity and rapidly mastered new technology.
But this challenge also presented an opportunity to streamline processes and expand our businesses. Nick Guinn, a patent attorney based in San Antonio, interacted with his clients mainly by telephone or email even before the pandemic. His in-person meetings transitioned easily to videoconferencing platforms. While Guinn worried about having less access to hard copy documents, he has found electronic documents surprisingly easy to work with and is excited about continuing to use less paper going forward. Because this experience has shown that remote communication can be equally effective and certainly more cost-effective, he anticipates that lawyers will be able to expand their client bases outside their immediate geographic area.
Gretchen McCord owns a Rockdale-based firm focused on intellectual property and business matters that has been fully remote since opening in 2010. Whether you’re simply looking to improve workflow until you get back into the office, or you’re interested in implementing remote work on a permanent basis, she advises that the secret to a successful remote business is finding the tools and processes that work best for you and your team. With multiple remote employees who may be working from geographically distant locations, she recommends cloud-based tools for document storage and sharing, docketing and calendaring, billing/accounting/invoicing, videoconferencing, email, project management, and customer relationship management. There are many tools available for each of these functions, and some tools may serve multiple functions. Selecting the right tool will require you to consider the size of your organization, areas of practice, preferred communications styles, budgets, and personal preferences.
Of course, this assumes that your practice can be transitioned to remote platforms. Some lawyers, in particular, criminal defense practitioners simply do not have that option.1 While many civil proceedings halted completely, constitutional mandates required at least some criminal proceedings to continue. Defense attorneys have continued to meet with their clients in jails and prisons, where the risk of infection is high, but have to attend many hearings virtually, hindering their ability to confer with their clients. They report that fear of contracting a potentially fatal disease is motivating clients to accept plea deals. On the flip side, prosecutors report that they are trying to resolve cases by offering more lenient plea deals while still protecting public safety, because they worry that the delay in proceedings will adversely impact their ability to prove guilt beyond a reasonable doubt.2 The experience of those in the criminal justice system makes it clear that remote work is not a perfect substitute for our pre-pandemic systems.
As it became obvious that the pandemic was not going away in two weeks, or by Easter, or by summer, the courts had to develop procedures for remote court operations. Ray Thomas, of McAllen, commended the judges and court staff for ensuring that hearings could continue, noting that “many other stakeholders worked with our board of judges to make it happen, including our county judge, county commissioners (who funded the necessary adjustments), the district clerk and county clerk offices, the district attorney’s office, the sheriff’s department, and of course the lawyers and our supporting staffs.” His greatest concern is that the backlog of civil jury trials will take years to work through.
David Slayton, administrative director of the Texas Office of Court Administration, said that conducting jury trials during the pandemic was the greatest challenge.3 In-person trials proved risky, even with social distancing and sanitization procedures in place; one lawyer died of coronavirus, possibly contracted from his client at a pretrial hearing.4 The courts began experimenting with remote trials, but their efforts were hampered by reluctance among lawyers and parties to be the first to try a case virtually. Despite initial reluctance, there have been some notable benefits to virtual trials. Slayton noted that there was significantly better response from the jury pool, it was more efficient for judges who travel between counties, and the Zoom platform helps prevent lawyers from interrupting or talking over each other.5 It seems that the necessary adoption of virtual hearings may result in permanent changes to the way we practice, at least for less complex matters.
Like practitioners, the judiciary has likewise pivoted to this new normal. In March, Judge Antonia Arteaga, of the 57th Civil District Court in Bexar County, hit the ground running with her fellow judges to keep the wheels of justice moving, even if remotely. Seven months later, Arteaga presided over Bexar County’s first virtual jury trial. While recognizing the challenges imposed on everyone to become “Zoomfluent,” Arteaga emphasized that like pre-COVID-19 times, “practice, practice, and even more practice” is the best recipe for success in the age of virtual proceedings. Arteaga views practitioners during these times as “pioneers,” so she strives to give lawyers the time and resources to succeed, including allowing Zoom pre-trial practice time.
And just as lawyers have adapted to become “Zoomfluent,” so have judges. Judge Angélica Jiménez, of the 408th Civil District Court in Bexar County, observed and learned from Arteaga’s first remote jury trial, which gave her the familiarity the next month to preside over her own virtual jury trial alongside an eager panel of jurors ready to serve. Noting that we have all been part of the learning process, Jimenez observed that the bar, the judiciary, and the community’s collective resilience during the pandemic has been on full display by ensuring litigants continue to get their day in court.
Judge Emily Miskel, of the 470th District Court in Collin County, echoed her colleagues’ sentiments. A year ago, Miskel made history by presiding over the country’s first virtual jury trial. Fast-forward to today, and Miskel noted the surprising benefits brought by remote proceedings. For example, she observed that litigants who traditionally would not show up to in-person proceedings are now showing up for remote proceedings, which creates “better access to justice.” Because of this, Miskel predicts that remote proceedings will likely continue for certain cases, even in a post-pandemic world.
If remote practice is here to stay, it’s a good thing that Generation Z, or “Zoomers,” is about to start graduating from law schools. As Ben Koshy, a recent Baylor Law School graduate who is practicing in Lufkin, observed, the recent crop of graduates had to complete law school and take the bar exam remotely. In the face of hiring freezes, they had to network remotely and interview virtually. For them, the remote practice of law is not a sea change. An associate attorney who can comfortably navigate the various remote platforms used for hearings, depositions, and remote meeting—or at least prevent you from appearing as a domesticated animal in front of a judge—might be worth their weight in gold.
With Gov. Greg Abbott recently lifting the statewide mask mandate,
and President Joe Biden announcing that all Americans should be
vaccinated by summer, we all fervently hope that a return to normal is
imminent. Nevertheless, as we think of how we measure this past year, it
is clear that the bar is more than ready to face whatever challenges the
future holds. TBJ
Natalie Friend Wilson is a shareholder in the San Antonio office of Langley & Banack. She is certified in business bankruptcy law by the Texas Board of Legal Specialization and leads the firm’s Cybersecurity, Data Protection and Privacy Practice Group.
Joshua J. Caldwell is a senior associate at Davis & Santos in San Antonio. He is certified in civil appellate law by the Texas Board of Legal Specialization and serves as a member of the State Bar of Texas Law Focused Education Committee.