Technology is just one of the tools we need to get through this crisis and the next

By Joe Van Thomme

– The Plague, Albert Camus

Pandemics do strange things to the imaginations of people. Most people are rightly worried about their health, their families, and their jobs. But as Albert Camus put it, “the only way of escaping that intolerable leisure was to set the trains running again in one’s imagination and in filling the silence with the fancied tinkle of a doorbell, in practice obstinately mute.” And so our minds stray into abstract questions about the mathematics of toilet paper rationing, whether hand sanitizer works just like a cleaning wipe, or if pizza boxes can transmit viruses.

But the most pressing question on most people’s minds has been asked in headlines everywhere from The Atlantic to the Boston Globe and to the BBC: “When will things go back to normal?”

Legal services, whether deemed so by executive order or by their very nature, are essential services. People come to lawyers much as they come to doctors, expecting and needing an expert’s guidance on family law cases, contract disputes, estate plans, or criminal matters, to name a few. That expectation from our clients, whether they be individuals, institutions, governments or tribes, should be empowering and fulfilling. In a chaotic time, it should give you purpose.

Unfortunately, right now no one has any expert answer about that pivotal question of when life will return to normal. Given the gravity of the problem the world is facing, I would be suspicious of anyone who suggests that they do.

But that fact does not alter who we are as lawyers, judges, court administrators, paralegals, and other legal practitioners: problem-solvers. In fulfilling that role for our clients, we should start by setting the return-to-normalcy question aside for a moment, and ask a more fundamental one: “What should the new ‘normal’ look like?”

Asking fundamental questions

Holocaust survivor and psychotherapist Viktor Frankl has written extensively about the importance of perspective and a search for meaning even in the gravest circumstances, recognizing that crises often present opportunities for introspection and growth. The current crisis provides us with that opportunity, particularly with a chance to examine why we practice law the way we do. The best lawyers will ask themselves how their practices have helped the communities where they live and work and how they can continue to provide their services. But before we can meet any crisis, we need to know what tools we have to do the job and what tools we need to finish it.

Technology has changed our lives immeasurably in the last few decades, and as a tool for meeting this global crisis, it came into play immediately. Minnesota Gov. Tim Walz’s most visible response to the state’s crisis—an executive stay-at-home order—depends on working remotely, something that technology now allows but few of us could have done for any extended period just a few years ago. Lawyers must use technology to adapt their practices if they are to continue to serve their clients through this pandemic and afterward.

Looking to the court system, it is easy to imagine the benefit of harnessing technology and the risk in failing to do so. Courts in every county have developed over time their own local practices for holding hearings, mediating disputes, and processing court filings. Most in-court proceedings have been significantly disrupted by the pandemic. And with a highly contagious disease in our midst for the foreseeable future, limiting in-person contact for groups of people is undoubtedly the right response. But to simply reduce the number of in-person hearings and wait until courts can reopen like “normal” is to not only miss a chance to reassess our practices but to possibly exacerbate the harm caused by the delay. 

Imagine a person seeking a protective civil order from a domestic abuser being told that their hearing cannot occur until hearings can be held in-person once again. Imagine a poor defendant in a criminal case being denied job opportunities, limited as they will be during an economic downturn, because of a pending minor criminal matter that cannot be resolved until cases are heard like “normal.” When technology allows for hearings to be conducted in alternate ways, such as through remote appearances, refusing to allow such hearings would be tantamount to denying access to justice. If attorneys, judges, and legal practitioners truly are problem-solvers, the looming imperative is to quickly adapt our practices and processes to ensure that courts and the law do not cease to be mechanisms to resolve disputes and protect the rights and safety of the people we serve.

It is tempting to point to the magnitude of this crisis—a 100-year-pandemic!—and imagine that this problem will be one that only time can solve. But recent history has also shown us that technology can be rapidly mobilized to address a problem.

The use of electronic warrants in criminal cases directly resulted from a string of state and national appellate decisions that drastically altered the way in which law enforcement could investigate impaired-driving crimes. As a response, judges, courts, and law enforcement agencies needed to adapt—quickly—by using technology to meet a significant challenge. Court-system stakeholders met the challenge and by virtually all accounts, the resulting process not only better serves public safety, but is more efficient.

Finding alternatives to the normal in-person hearing model is an access to justice issue, as using technological alternatives may also expand the ability to participate of parties typically excluded or discouraged from in-person attendance, such as disabled lawyers or parties, low-income litigants, or even victims in criminal cases. Additionally, by efficiently utilizing technology, judges may end up with better information than they might otherwise have in a traditional hearing, as in the case of electronic search warrants.

The challenge: Think differently

Technology will help us leverage this crisis into an opportunity to improve our practices. But technology alone will not solve this problem. The tool we will need is critical thinking—specifically, thinking differently—about the challenge before us. Rather than continuing to think of this problem as one that can only be solved by waiting for a return to normal, we should reframe the crisis as one that provides us an opportunity to increase access to justice for citizens, whether that means rethinking court processes, adapting our individual practices, or using alternative resources to continue our service to clients. Thinking differently requires us to ask: How can we ensure that our citizens, clients, and communities continue to have access to justice?

The courts again provides a tangible example. For many who practice in the court system, delays and continuances are a constant source of concern. Litigants and parties live in limbo, witness memories age, and cases stack up one behind another. Certainly there are many reasons, including some very good ones, for delaying proceedings. But to the extent that courts get backlogged because of sheer caseloads or limited judicial resources, it may be time to reassess whether the traditional court hearing model for all cases is the safest and most efficient, especially in a world where social distancing will be the norm for the better part of the next few years. 

For instance, in many counties, a hearing officer program greatly expands access to the courts for defendants charged with minor offenses. A hearing officer is a judicial officer who gets specific authorization to resolve certain cases by a given city or prosecutor. The officers in most cases are available for walk-in defendants and in some counties even by appointment. In contrast to requiring defendants in low-level cases to come to one specific court date in a mass “cattle-call” format that may take the better part of an afternoon, allowing some offenses to be handled by a hearing officer reduces the number of court hearings to be scheduled, which further reduces backlogs of court cases. 

Reframing this as a possible solution that increases access to justice, you can easily imagine the impact such a program could have for many litigants. Imagine the benefit to a low-income defendant—who, instead of taking time off from an hourly job, finding childcare, or (worse) bringing their children to court for the hearing, could instead come to the courthouse to discuss their low-level traffic offense with a hearing officer at a time when they have childcare or are not working. Not only would the low-income person receive greater access to justice, but cases would be resolved more efficiently, backlogs would be reduced, and overall public safety would be protected. This is what increasing access to justice could look like.

Since there are no good answers to how long this pandemic will last, how it will ultimately affect our practices, and most importantly, how it will change our lives, the challenge will be for those of us in the legal field to combine the tools we have (technology) with the tools we need (critical thinking and problem-solving) to help us reframe this problem as an opportunity for growth. 

We can start by asking ourselves if there are ways to improve access to justice for poor or unrepresented parties. We can ask if there are ways to ensure that transactional practices can continue without the traditional in-person consultation and execution models. Indeed, recent legislative bills have been introduced with just such goals in mind. We can ask whether our client communication process is meeting the needs of our clients, who right now may feel an increased need for advice and guidance. Questions abound about the challenges we face, and answers are in short supply. But if we are to come out of this for the better—because we will come out of this—it is crucial that we ask the right questions. What should come next in our practices? What kind of world do we want to create?

Lawyers are problem-solvers, but we are also leaders for our clients and our communities. To ignore an opportunity to leverage change for the better is to fail our clients, our communities, and our practices. It is to sit idly and wait for, as Camus put it, “the fancied tinkle of a doorbell, in practice obstinately mute.”