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Some changes will stay after the pandemic passes

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Fourth DCA using Zoom

IN RESPONSE TO THE COVID-19 PANDEMIC, Florida’s state courts stepped up the use of  video teleconferencing software – like the Fourth District Court of Appeal in West Palm Beach is doing here – lawyers and staff were forced to work remotely, and the demands of some practice areas changed. Many now are predicting that when the crisis passes, many of the changes instituted in the wake of coronavirus will be here to stay.

Judge Scott BernsteinCould one of the long-term effects of the coronavirus epidemic be better housekeeping by lawyers?

Here’s one impetus. Eleventh Circuit Judge Scott Bernstein noted that with the sudden switch to video conferences to conduct court business, “I’ve seen the kitchen tables and counters of about 45 lawyers in Miami.”

Bernstein and several lawyers, though, expect a multitude of other, less lighthearted, changes to emerge when the Florida legal system emerges from the pandemic.

The predicted transformations include more remote electronic court proceedings especially for routine matters, more lawyers and staffs working from home at least part time, perhaps a demand for new and younger lawyers in a suddenly more technologic world, a spiking of legal work in some fields, and perhaps a higher level of professionalism in a world that has survived a pandemic.

(The Bar’s COVID-19 webpage at floridabar.org/covid19 is being constantly updated to provide members with Florida Supreme Court orders immediately after they are issued, links to state and federal courts, Florida Bar announcements, member resources, and consumer assistance.)

Routine Matters

“I have a motion calendar every week, usually limited to five minutes each,” said Bernstein. The calendar usually handles routine matters like discovery or privilege issues. Yet for that five-minute hearing, lawyers may have to set aside three hours to allow for travel time and waiting for the hearing to start.

“If it’s a matter that can be resolved in a five-minute video hearing without a three-hour charge for time, I think clients will demand that from lawyers,” Bernstein said. “For five-minute matters, I don’t think we’re ever going back to live.”

Photo of John M. StewartBar President John Stewart agreed and said he’s had several conversations on that subject, including with people in position to push for such changes. He said Rep. Paul Renner, R-Palm Coast, the chair of the House Judiciary Committee, has frequently lamented about needing three hours of time for travel, waiting, and other inefficient client-expensive diversions to do a short court appearance.

“Coming out of this, who’s not going to say that is not absurd?” Stewart said. “When the economy recovers. . . that’s going to seem obvious. That’s going to help everybody.”

West Palm Beach attorney and former Bar President Greg Coleman said in addition to attending remote hearings in state and federal courts, he’s done three remote depositions taking advantage of the emergency Supreme Court administrative order allowing for remote swearing in of witnesses. He does have reservations about whether remote depositions in document intensive cases would work as well.

“I miss the human interaction and I don’t think an argument over the phone is quite as persuasive as an argument standing in front of a judge,” Coleman said. “One of the greatest aspects of this is the amount of money being saved by the clients…. If I’m on hold with a judge, I’m not billing my client for that. While I’m on hold, I’m doing other work in a different case. I’m not losing any time or money and the other client is benefitting from it.”

Remote Work

Lawyers are also seeing value and efficiency to working remotely for both lawyers and support staff.

“I think you’re going to see less resistance to more remote work because we know it works,” Coleman said.

Zack ZurowesteClearwater attorney Zack Zuroweste said his four-lawyer firm had previously equipped his attorneys with laptops. In February when the coronavirus began spreading, support staff also was provided laptops and the firm practiced remote operations. Because the firm’s records and operating software were already cloud based, the transition was smooth.

“It seems like the practice of law has really encouraged face-to-face interaction and people sitting at their desks to prove their value to the firm,” Zuroweste said. “I think by this virus forcing many of us to work remotely, it allows lawyers and staffers to see they can be just as effective at home.”

He added, though, “It doesn’t feel the same as everyone sitting in a room together looking at a document or discussing what has to happen when a lawsuit is filed.”

Zuroweste also said some courts and judges are better equipped and more comfortable handling remote hearings than others.

“There does not appear to be a statewide protocol that gives consistency to how courts are handling their dockets,” he said. “It’s been more difficult to figure out preferences of each court as we try to move our cases along.”

Young Lawyers Division President Santo DiGangi said he’s certain some changes will remain after the crisis.

“We will start seeing law firms allowing their employees to work remotely more often and there will be more hearings, especially uniform motion calendar hearings, conducted over Zoom,” he said. “I believe both will drastically change the way law firms conduct business, especially with an increase in Zoom hearings, because much travel time will be eliminated from lawyers’ schedule and billing.”

Delray Beach attorney Anthony Russo agreed.

“We’re going to settle into a more comfortable area of having things handled by video,” he said. “When this goes back to what we call normal, it’s not going to go all the way back. People are going to feel more comfortable in the [online] setting, people are going to say, ‘Let’s do a video hearing.’”

‘It’s Not So Bad’

Leslie Powell-Boudreaux, executive director of Legal Services of North Florida, observed, “Staff who never thought they could work remotely are finding it’s not so bad. What I hope doesn’t change is the ability to work with others in teams and the value of a good brainstorming session and identifying legal strategies. But we’re finding new ways to do that. People who were technology averse are finding new ways to set up team meetings and finding new processes.”

Another challenge in the time of social distancing is finding new ways to reach out to clients, many who may not have access to computers, she said.

In lieu of community meetings and booths at different events, there’s more of a reliance on social media and other online resources, Powell-Boudreaux said. And for those without ready online access, her office is going back to printed flyers that can be distributed at various venues.

New Areas of Demand

If lawyers are preparing for how the pandemic will change how they practice, they are also looking ahead to how their cases may change.

“Our firm is a straight civil litigation firm. Those types of cases are always going to be around,” Coleman said. “I think you’re going to see areas that are going to be inundated with business: creditors’ rights and the business side in general, and employment and insurance cases. If I were going to open a firm now, I would hire lawyers for those types of cases.”

Anthony RussoRusso predicted, “This pandemic will spawn a whole cottage industry of lawsuits; business interruption, nursing homes. There will be some other areas coming out of that we haven’t even thought of. I think you’re going to see some creative stuff happening.”

He also expects litigation over use of telemedicine by injured clients seeking to meet statutory and insurance requirements for benefits.

“I think we will see an uptick in bankruptcy matters, commercial litigation, and insurance disputes,” DiGangi said.

He and others predicted while the crisis has scrambled the legal and overall economy, ultimately new lawyers may benefit because of a willingness to move into areas of demand created by the pandemic, and they are more adept with the technology that’s expected to play a larger role.

“These new lawyers are able to e-file their own court documents, draft letters without waiting for a dictation to be transcribed, and have been using videoconferencing technology since before it became a necessity,” DiGangi said. “I believe these traits will make them extremely viable candidates for legal positions moving forward because our profession has learned that work, including hearings, can be performed remotely.”

Russo, who was admitted to the Bar in 1995, concurred: “I’ve noticed in my hiring and interviewing of staff members, I tend to gravitate toward people who do things I’m not good at…. I think it’s going to put a lot of value on this younger generation.”

More Civility?

Perhaps the most intangible change is a sense of more civility.

“I think it’s two-fold,” Coleman said. “I think part of it was a complete and total reality check for all of us about how fragile life is and about how scary all of this was because it happened so fast. The world literally changed in five days. Hopefully, we’ll never see that again.”

He recalled at a recent video hearing, both sides collaborated to work out a delay because discovery required accessing documents in offices closed by the pandemic.

“Both sides, they were professional lawyers to begin with, but they worked above and beyond to get something to approach the court with,” Coleman said. “Before you may not have seen that.”

There may also be a technological component.

“Phone and video hearing don’t lend themselves to unprofessional conduct,” he said. “When you’re standing in front of a judge, it’s easy for someone to try to talk over you. You can’t do that online.”

Judge Bernstein, who presides in family court, has also witnessed a change.

“I’m actually seeing parents and lawyers compromising a lot more on issues that affect children,” he said. “The whole pandemic has sort of put things in perspective for some people about what’s really important in life. It has had an impact on some of my high-conflict cases, but certainly not all.”

The more informal setting of video hearings may lend to that, as the judge noted.

While lawyer professionalism has always been high in his court, Bernstein said during the pandemic, “I’ve seen tremendous professionalism accommodating people because of these things. I certainly hope that continues, and I think it just might.”

And maybe it’s just harder to be overly contentious when you can see the dirty dishes in the opposing lawyer’s sink.

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