In-House Counsel

Is The Court A Place Or A Service?

COVID-19 is forcing our hand, and I, for one, don’t think that’s a bad thing for the profession.

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It’s very hard to find anything positive about the pandemic that we are now in. But if this forces us to be creative about how we deliver legal services, then a collateral consequence of all this may not be all bad. Of course, lawyers and the profession are not known for being proactive or anything close to that. We are masters of the reactive, the “let’s wait and see,” and similar foot-dragging sentiments.

COVID-19 is forcing our hand, and I, for one, don’t think that’s a bad thing for the profession. If one of the things we should be doing is to make legal services more affordable and more accessible, then COVID-19 may prompt, indeed, mandate changes in our thinking and delivery of those services.

As just one example, some ADR providers in Southern California are now offering the option to attend mediation via videoconferencing. I know mediators, including me, would prefer to see the “whites of their eyes” so to speak, but right now, in the times of social distancing, that’s not the best idea. Anything to make the legal process work better and more economically is what works for clients. I only wish that more lawyers would see that; of course, it’s not in our economic self-interest.

Los Angeles is not the only city with lousy traffic. Having to pay counsel for time spent in the car traveling to and from mediation is not the most effective use of that time. I don’t have to explain the benefits of videoconferencing, and if I do, then shame on you. I used videoconferencing in a mediation fifteen years ago when my client was here in SoCal and the other side was in Nashville. It resolved. My client put more on the table (and I am talking cash, not rolls of toilet paper) and the other side was willing to accept less due to reduced expense.

Logistics play a major part right now. The Los Angeles Superior Court, the largest trial court in the country, is, among other things, continuing civil jury trials for thirty days and postponing criminal jury trials where statutory time has been waived for at least thirty days.

Courts will remain open for emergency hearings, including domestic violence restraining orders and other legal matters that cannot wait. Will the delays in civil trials prompt more resolutions? We’ll have to wait and see.

In an interview this past January (it was a different world then, at least to me), the legal technology guru and author Richard Susskind spoke of the significant challenges and difficulties that courts around the world face (and this was before the COVID-19 pandemic took hold). He thinks that online courts could be the answer to the access to justice issue.

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How many times have we told clients, potential or otherwise, that the economic value of a case does not justify litigation? How many times have we advised clients to resolve a matter, rather than going through the expenses of litigation? How many times have we suggested to clients that for very small matters, take it to small claims court and remit any amount in the jurisdictional excess? It rankles a client who thinks that she has a good, albeit small, case and she wants to tell her story.

Susskind’s suggestion for online courts is twofold: the first, which lawyers will not like, is the submission of evidence and arguments in an “asynchronous” hearing system. While he concedes that this process may not work for all cases, he does think it’s a better use of everyone’s time to resolve what he calls “relatively modest difficulties and differences.”

His second suggestion is that it should be part of the court’s job to provide tools so that nonlawyers can better understand their rights and obligations and provide ways for parties to resolve disputes among themselves. The Family Law Department of the Los Angeles Superior Court put into effect last summer an online dispute resolution tool for parenting plan agreements.

Every little step takes us closer to where we need to be in order to provide better access to justice. I would imagine that courts elsewhere have similar programs, at least I hope so.

Susskind says that we have the ability through technology to help nonlawyers access legal information and documentation. The goal is to improve access to justice, rather than perfect it, at least now right now.

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The question Susskind asks is whether the court “is a service or a place?” Here in Los Angeles County, it took years and years for Court Call to be acceptable as an alternative to in-person appearances for such mundane matters as case conferences, trial settings, and the like. Some judges here were also resistant to telephone appearances; of course, they didn’t have to bill the clients for the hours spent in court on those mundane matters.

As if to underscore Susskind’s comment that it’s so easy to take potshots at recommendations to improve access to justice, the State Bar of California just essentially put the kibosh on task force recommendations to try to improve that access, which suggested taking baby steps, ironically called a “regulatory sandbox.” While the official line is that “political headwinds” have put the brakes on those recommendations, this seems to be one more example of the ostrich-like thinking that permeates California bar leadership.

As Susskind points out, compete or help build emerging systems. To compete will leave lawyers in the dust sooner or later. It may seem superficially safe to cling to the status quo, but as we are finding out, the status quo doesn’t work anymore.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

 

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