A Family Lawyer’s Journey During a Pandemic
I must admit one of the best parts of going to court for me as a family lawyer was the morning of. I’d put on my best suit, my best shoes, grab my leather rollie and power walk myself to the Courthouse repeating “you got this, you can do it”. There, I would greet all the sheriffs and their smiley faces and shove myself into an always overcrowded elevator where shoulders and hips would touch, and (sometimes) friendly conversations between lawyers would ensue.
I’d approach the courtroom where lines and lines of people would patiently wait for my favourite clerk to check them in. The atmosphere was of course tense because all you are dealing with is mainly conflict, but those court rooms were my chance to meet colleagues, pass a few jokes and lounge around the Barrister’s lounge at lunch time to decompress, read the paper and glance over the advertisements on the posting board.
And yes, when I was single, it didn’t hurt to look at so many men in suits.
That doesn’t happen anymore.
New Ways of Lawyering During a Pandemic
My suits and shoes are collecting dust for the most part. I do not even have to wash my face before starting a hearing. I am often worried about my daughter yelling in the background or someone opening the door of my room and talking while I am making submissions.
There are no morning strolls to the courthouse, no new lawyers to say hi to, no face to face debates with judges, no reading of body language which is essential to effective advocacy.
The Barrister’s lounge is closed, the coffee shop is closed, there is barely any place to even sit and write down notes in the hallways of a courthouse that remains closed to most of the people who need it the most.
In March 2020, many lawyers quickly moved to remote working in efforts to follow Covid-19 protocols, and so did the court system. Many trials and hearings were adjourned leaving a sense of unknown and chaos. There was no doubt that courts needed to stay open, clients continued to need representation and this was not something that could simply shutdown – after all, we are part of an essential service.
As such and in response, all hearings were moved to telephone appearances to ensure that safety guidelines are followed.
The Inefficiencies of the Court System During the Pandemic
Appearing for a hearing over the phone is an odd experience:
- The process of checking in is chaotic to say the least. Lawyers join in the conference as another lawyer is making submissions,
- People try to be polite by not speaking over one another which often results in everyone speaking at the same time,
- An often frustrated court clerk tries to match matters and binders to unknown voices over the phone.
- In many instances, the judge does not have my materials or binders in front of him, because these binders are supposed to get couriered to the judge’s home and sometimes if the matter is urgent or there is a miscommunication, the binders do not get couriered on time.
- So awkwardly we have to wait for the court clerk to get the judge’s email address so we can provide our materials;
- A lot of time is wasted on sorting out preliminary, basic matters such as ensuring everyone is on the line and the judge has the materials he or she needs to make a decision.
- The submissions part is strange at best. I can’t see anyone’s face or reaction and I can’t really object because I do not want to cut out my friend or annoy a judge who is already struggling to make a decision given the technological and human limitations.
Most Damaging Aspect of Litigation During the COVID19
Perhaps the most damaging aspect of advocacy during the pandemic is the inability to catch the opposing counsel outside the courtroom in the morning of the hearing and saying “Hey, let’s just get along. Do you think we can resolve this together?”
There is something about face to face human interaction, the emotions you feel in the morning of a hearing and some nervousness/excitement that motivates you to try one last time to negotiate and be spontaneous. This spontaneousness is what is truly missing in our COVID19 world. It makes me wonder, could we have settled more matters if we were personally in court as opposed to being on the phone or on a Teams call where we are unable to have a private one on one last minute effort to resolve our issue.
And I know you might say we could have that conversation prior to the morning of the hearing by picking up the phone and hashing things out. Still, there is a reason why the majority of court cases settle the evening of, or the morning of trial. It’s not a coincidence.
The Efficiencies of the Court System During the Pandemic
In some ways, this new way of lawyering to me is so much better than before. So much more efficient, cost effective, and dare I say, exciting:
- Everyone, including lawyers and judges are slowly getting used to reviewing documents digitally instead of having thousands of pages printed in front of them (yay, let’s save trees!);
- Travel time to get to court is completely out meaning more cost savings to the clients which can be several hundreds if not thousands of dollars;
- We do not have to wait in court for hours for our matter to be called and having to charge the client. We remain on the phone and work on other tasks until our matter is called (meaning less money charged to client).
- We can file and sign almost everything electronically, we are learning to use technology better, we are saving tax payor’s money by needing less human or physical resources.
Now a year into a global pandemic, many of our appearances remain virtual. The biggest change is that the court’s have begun using Microsoft Teams for hearings, which has allowed for video appearances while keeping the option of appearing by audio available to all.
Although many of our appearances are virtual there are some that have now moved back to in person, most importantly family law trials.
And yes, I did a trial during the pandemic and in person. In the next blog I will explain how different and strange it was.