By Bob Glaves | CBF Executive Director
If you can’t wait to put 2020 behind you and would like to send it off with an emphatic middle-finger salute, you’ve got a friend here. But for those of us who are lucky enough to have made it through this bizarro year in one piece, there is much we can and should take with us that will make the world better in 2021 and well into the future.
That’s why my 5th Annual New Year’s Resolution for the Legal Profession is to take stock of what 2020 has taught us to make for a better profession and a better system of justice going forward. And we’ve got a lot of material to work with on this front.
The Year That Was
While the pandemic made 2020 a difficult year for all of us on some level, far too many people in our community suddenly saw their worlds turned upside down, or worse. In just nine months, thousands of people in the Chicago area lost their lives or lost loved ones or friends, lost their businesses or livelihoods, or saw the already precarious balance they were living under upended.
The rest of us should start by thanking our lucky stars that we made it through with what are, relatively speaking, more trivial concerns. New concepts like bubbles and wubbles, quarantines, and social distancing became central to our lives. Zoom became so ubiquitous that it now rivals the f- word in the way it is used as noun, verb, adjective and more. And the brilliant “What day is it?” segment a Cleveland TV station started early in the pandemic captured what a lot of us felt throughout the year.
Along with those things we would like to put in the rear-view mirror—or, in the case of Zoom, use more in moderation—there are many things we should celebrate before turning the page. The perseverance and resilience and the way we quickly adapted to a world of weird no one had experienced before. The way we stepped up to help others, with the inspiration of the heroes on the front lines of the pandemic battle, including many working in our justice system. And the amount of progress our usually hide-bound profession and court system made in such a short time to join the 21st century in the way we use technology was truly amazing.
All of this happened by necessity, and there is going to be a natural temptation to try to go back to what in early March was completely normal. In some instances—like hugging people we care about, traveling, and attending live music and sporting events en masse—that is exactly what we should do. But when it comes to our profession, our system of justice, and the practice of law, we should aim for a better, new normal that builds on what we learned this past year.
The Five Components of the Resolution
I’ve broken down this resolution into five components below, and I’ll have more to say about each of them in the coming months. One overarching point is that the idea that we’re going to toss everything we were doing just nine months ago out the window is just as ridiculous as saying we’re going to go back to doing things the same way. The answer lies in the middle with a new and improved hybrid model.
I start with the courts, because what we learned in 2020 has the potential to be truly transformative in creating a more fair, accessible, and efficient system of justice.
I started down this road back in May when I naively thought we were on the cusp of the transition to the new normal. While I was just a bit optimistic on the timing, the title and content of that post, “Just Because We Can Doesn’t Mean We Should, and Just Because We Should Can Never Again Mean We Can’t,” is even more applicable with the continued and impressive progress the courts have made.
As Chief Justice Burke and others have noted, the pandemic was not the challenge we wanted, but it is the challenge we needed to bring the system into the future. And as her fellow Supreme Court Justice Theis has noted, we should think of court as a service, not as a place.
While there will always be a place for the courthouse, looking ahead, the default assumption should be that lawyers, litigants, and witnesses should be able to appear remotely for court proceedings at their option in all but exceptional circumstances.
Lawyers by necessity also learned a lot about how we can make our services more accessible and efficient for clients. People more than ever want a range of options for accessing legal services that includes remote and online services whenever practicable. Now is a great time to map your client’s journey (or update your prior map) with the lessons of 2020.
As part of that process, fully respecting the integral role that other legal professionals play in improving efficiency, accessibility, and affordability of our services is essential, and we need to stop calling them non-lawyers! After this year, we should understand that the practice of law, which appropriately is lawyer-centric, is distinct from the delivery of legal services and the business of law, where we can do so much better by collaborating with other legal and business professionals.
In both instances, there is a lot that individual lawyers and firms can do right now to make these pivots to the future. But to do it at the scale and speed necessary to meet the demands of the market (for both lawyers and the public), there is no substitute for modernizing our antiquated Rules of Professional Conduct. We need to regulate for 2021 and beyond, not the bygone era of the 1980’s.
Lastly, 2020 has opened the door for a long overdue conversation about revamping legal education and the bar exam. Raise your hand if you had a client or case that came to you with multiple choice questions. We can do a lot better.
A Commitment to Wellness
The line between work and home already was fading before 2020, and that line has almost completely blurred with the pandemic. Even when the new normal sets in, working from home or other remote locations at least part of the time is here to stay, and we need to set some boundaries as we make that transition.
These blurring lines are just one of many reasons we should take the increased recognition of the importance of wellness and make it a priority going forward. Erin Clifford recently wrote an article in the ABA Journal that, while focused on wellness during the holiday season, sets a good roadmap for the new year as well. Let’s commit to following through, we’ll all be better for it and so will the people we serve.
Office Space, Conferences, and Trainings
As someone who was a classic, in-office lawyer from the start of my days in practice, the sudden transition to working mostly from home has gone far smoother and better than I ever could have imagined. Clearly, I’m not alone.
Just because we could work from home when we had to does not mean the end of the office, nor the end of in-person conferences or trainings when we are on the other side of the pandemic. We humans are social animals, and law is still a people business.
That said, we can and will be a lot more flexible, and we should think of the office in new ways that allow for people to work remotely for at least part of the time. Similarly, the default expectation going forward should be that conferences and trainings are hybrid events where we can take advantage of in-person connections but also participate remotely.
Racial Justice and Our Profession’s Leadership Role
Finally, I end with racial justice for emphasis, because keeping the pedal down on the overdue reckoning that began in the wake of the horrific events of this year is as important as anything we can do.
On that note, just two points I want to highlight for now. First, our profession has a lot of racial justice issues to confront right here in the backyard of our justice system. We all have a role to play in the larger societal reckoning, but we have a unique leadership responsibility for the issues in our profession and the courts.
Second, these are going to be uncomfortable and difficult conversations, especially for those who have experienced racial injustice firsthand. We need to recognize that not everyone is starting from the same place or even using the same language in these discussions, but not let that deter us from having the conversations and turning them into action.
While I don’t know the provenance of this quote, it’s one we should all keep in mind in these conversations: “Give the gift of the benefit of the doubt.” Some will surely prove themselves unworthy of it, but if we go in assuming that people are trying to tackle these issues in good faith, we’ve got a better chance of working together toward real solutions.
2021 Here We Come
While we’ve got a few more months of sacrifice to get there, now that we can see a light at the end of the tunnel we can help make it a sunny day for our profession, our justice system, and most importantly, the people we serve by incorporating the hard lessons of 2020 into the way we do business in 2021 and beyond. It is the opportunity of a lifetime for all of us, and let’s make sure to take full advantage of it.
In the meantime, thanks for reading along this far, and all the best to you and yours for a safe and happy holiday season.