Lawyering under - and after - COVID
Many of the ways lawyers have adapted to the pandemic are here to stay.
Megan McArdle, in The Washington Post, says we won’t be going back to normal even when everything is back to normal:
…For all the talk of a “return to normal,” large chunks of the old normal are due for a post-covid-19 rethink. And I’m not just talking about movies heading to video or takeout cocktails — though, please, let’s keep the takeout cocktails. The more I think about it, the more I think I’m talking about practically everything.
The most obvious place to start is with the health-care system. Hopefully, people are already considering how to strengthen the medical supply chains that broke early in the pandemic and stayed broken too long — including reforming the reimbursement systems that reward medical procedures rather than basics such as protective equipment. We need to reward nursing homes for the basics, too, like cleaning and infectious-disease control, rather than costly extra services — a perverse system that damn near amounted to geronticide when the pandemic hit. These things should have been fixed decades ago; the next best time is right now.
Also in need of scrutiny are the failures that crippled so many public health agencies, up to and including the Centers for Disease Control and Prevention and the World Health Organization. We need accountability for those failures, but also to adequately fund public goods like pandemic preparedness and keep them funded. Harold Pollack of the University of Chicago’s School of Social Service Administration says, “My biggest fear is that public health is boring until it’s not, and then it gets boring again.” Covid-19 has taught us that we need to stay interested even when nothing appears to be happening.
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Of course, a lot of us might just stop going into work — or at least stop going in so much. I doubt that the office is truly over; in fact, the pandemic has highlighted the value of personal contact. But it’s easy to imagine most office workers getting their collegial fix in a couple of days a week.
That, in turn, probably means reimagining homes — who still loves the open-concept home after nine months of 24-hour family time? Quick commutes become less valuable, personal living space much more so, which represents an extinction-level event for a lot of commercial real estate owners, and the ancillary businesses that serve commuters, particularly in New York and San Francisco. Exurban estates with good views, on the other hand, might well enjoy a renaissance.
Business travel is also due for reconsideration — and without business travelers, the travel industry will collapse. While you might expect that means some fantastic deals for leisure travelers, it’s more likely to mean the reverse, since travelers on an expense account often subsidize bargain-hunting tourists. The resulting declines will crush hotels, airlines and their workers, plus the budget of every city with a significant tourism or convention business.
I worked from home for a few weeks when the first wave of COVID-19 hit Nova Scotia, but even when things died down and it was safe to go back into the office, I still only did so for three or four days per week. With my files stored in the cloud and in-person meetings and court appearances on hold, heck, why not take a few days during the work week to let yourself sleep in a little longer and avoid the commute?
The practice of law, at least in this province, has adapted in some ways I won’t want to give up. At long last, the courts finally warmed up to accepting filings and correspondence via email. Brief court appearances and even settlement conferences have worked perfectly well via telephone. Even meetings with clients can be done via phone or video calling apps like Zoom.
As for actual contested trials, well…I had a complex case involving several different parties, each with his or her own lawyer, and our attempt to hold a hearing over Microsoft Teams was a total disaster. We wasted an entire day unsuccessfully trying to keep everyone connected before finally giving up and scheduling a trial in person, with as many social-distancing measures as possible.
Trials with fewer people involved might work over video, but holding contested hearings in the courthouse is likely one thing that won’t change at all. Really, when cross-examining someone, you have to be there so you can see and hear the witness. But we’ve learned that there’s no need to get dressed up in suits and ties and drive all the way to the courthouse for everything.
I shared this bit of wisdom on my Facebook page a few days ago:
It’s the first thing that came to mind when I saw this story, about the Barney Gumble brigade demonstrating against COVID restrictions on Staten Island:
Hundreds of mostly maskless protesters stood shoulder to shoulder outside a Staten Island bar on Wednesday night to demonstrate against the state’s coronavirus restrictions and support a tavern that was forced to shut down for flouting those guidelines.
The raucous scene of about 400 demonstrators in front of Mac’s Public House came a day after plainclothes city sheriff’s deputies busted the bar, which had been operating without a liquor license, for serving food and alcohol to patrons indoors past the 10 p.m. citywide curfew in exchange for a mandatory $40 “donation,” authorities said. The bar’s owners previously declared the establishment an “autonomous zone,” and had publicly taunted New York Gov. Andrew M. Cuomo (D) and Mayor Bill de Blasio (D).
Sheriff’s deputies arrested Mac’s co-owner Danny Presti on Tuesday for obstructing governmental administration, and a cook, bartender and the bar’s lawyer were also charged, according to the New York Daily News. Presti was released Wednesday.
The tavern’s defiance is part of a larger pushback from bars and restaurants in Staten Island — a borough largely sympathetic to President Trump — that are flouting the state and local restrictions imposed to help stop the spread of a virus that has killed more than 24,000 throughout New York City. The state is facing a significant surge in coronavirus cases, hospitalizations and deaths over the past week, according to data compiled by The Washington Post.
It mattered little to the hundreds gathered on Lincoln Avenue on Wednesday night, many of whom were waving American flags in an area described as “the middle of a COVID hot zone.” They chanted, “F--- Cuomo!” and “Open up!” and sang songs like Twisted Sister’s “We’re Not Gonna Take It” and a cover of the Village People’s “Y.M.C.A.,” a staple of Trump rallies.
“The people have rights!” one protester yelled, reported the Daily News. “Open the door, I’m thirsty!”
I’m a sole practitioner running a law office on a shoestring budget, so I’m sympathetic to small businesspeople who’ve found themselves in financial trouble because of the pandemic. For many restaurants and bars, this has been devastating. But my sympathy has limits:
Mac’s first gained attention on Nov. 20, when the bar, ignoring cease-and-desist orders and piling up fines, said it planned to continue offering indoor dining even though it is illegal. The bar’s owners painted an orange rectangle in front of the business to mark their declaration as an “autonomous zone.”
“We refuse to abide by any rules and regulations put forth by the Mayor of NYC and Governor of NY State,” the bar posted to its Facebook account.
I don’t know if the person who created that Facebook meme knew about Mac’s Public House, but my God, I can’t imagine anything that more perfectly symbolizes it.
If anything, I kind of respect the really wacky QAnon/5G/flat-earth protesters more than these guys. If you really believed there’s an evil cabal eating kids or something, I can see why you’d think that would be worth protesting against. As opposed to “Open the door, I’m thirsty.”
And yet…in New York City and other major American urban centers, the protests-under-COVID toothpaste was squeezed out of the tube many months ago.
Obviously, I do not believe demonstrations against racism and police brutality are morally equivalent to dirtbags whining that they can’t go to their favorite bar - but nor do I believe governments should be favoring one kind of demonstration over another. Imagine giving Donald Trump that kind of authority.
Thankfully, it looks like the Black Lives Matter protests didn’t lead to mass spreading of COVID-19, but that was only discovered after the fact. When the demonstrations started, the progressive consensus was that the protests were so important they were worth the risk:
For months, public health experts have urged Americans to take every precaution to stop the spread of Covid-19—stay at home, steer clear of friends and extended family, and absolutely avoid large gatherings.
Now some of those experts are broadcasting a new message: It’s time to get out of the house and join the mass protests against racism.
“We should always evaluate the risks and benefits of efforts to control the virus,” Jennifer Nuzzo, a Johns Hopkins epidemiologist, tweeted on Tuesday. “In this moment the public health risks of not protesting to demand an end to systemic racism greatly exceed the harms of the virus.”
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…many say the protests are worth the risk of a possible Covid-19 surge, including hundreds of public health workers who signed an open letter this week that sought to distinguish the new anti-racist protests “from the response to white protesters resisting stay-home orders.”
Those protests against stay-at-home orders “not only oppose public health interventions, but are also rooted in white nationalism and run contrary to respect for Black lives,” according to the letter’s nearly 1,300 signatories. “Protests against systemic racism, which fosters the disproportionate burden of COVID-19 on Black communities and also perpetuates police violence, must be supported.”
“Staying at home, social distancing, and public masking are effective at minimizing the spread of COVID-19,” the letter signers add. “However, as public health advocates, we do not condemn these gatherings as risky for COVID-19 transmission.”
Was it fair to decry conservatives’ protests about the economy while supporting these new protests? And if tens of thousands of people get sick from Covid-19 as a result of these mass gatherings against racism, is that an acceptable trade-off? Those are questions that a half-dozen coronavirus experts who said they support the protests declined to directly answer.
Credibility, once squandered, is almost impossible to regain. The kind of people protesting to reopen a pub likely wouldn’t have listened to the experts anyway, but I think the scientific community lost many other people - who may have been sympathetic to the BLM protests, but also frustrated that they were under orders to stay inside because of a literal pandemic - when they declared that some protests were more equal than others.
Nothing to see here, just a Toronto Star reporter calling for “mandatory (re-)education.”
Some will say this is because she doesn’t know what “re-education” in communist dictatorships actually means. Personally, I’m pretty sure she does.
If one still has doubts at “Implement behavioural norms and discipline requirements for getting up, roll call, washing, going to the toilet, [...] and so forth”, then “Never allow escapes” and “[Ensure] full video surveillance coverage of dormitories and classrooms free of blind spots” should clarify things. The possibility of escape precludes a definition as “voluntary”.
Medical care is one area that could learn from Covid. I’m fairly dependent on lip reading, yet my doctor only accepts phone consultations. Since he also doesn’t speak English too well, it feels pointless to even ask for an appointment. Sometimes objections by medical offices seem more a matter of convenience than common sense: they are fine with leaving phone messages with an unauthorized person, yet refuse to send an email saying “Please call Dr. So-and-so’s office.” The stated reason is confidentiality.
Our healthcare system should learn from our legal system when it comes to flexibility. To me, video calls where one can see the person on the other end of the call seem *more* secure in terms of confidentiality than phone calls.
Having run an online-only business for decades, I would really enjoy more personal contact. But it’s not absolutely essential for business operations: file sharing, trainings, etc. all work very well online. Actually, my business has largely taken a hit due to in-person offices being closed.