Mediation Message #167


It’s been almost seven months since the coronavirus struck. At first, without solid information about its scope, many of us naively thought it would be over in a couple of months. It is now accepted that a vaccine, not yet developed, is needed to control the virus. After that are the uncertainties concerning the availability of the vaccine and its effectiveness. Besides affecting our health, the virus has also impacted our personal lives, business affairs and the world around us. The full extent of that impact is not known, and probably won’t be for years to come, but certain lesser “truths” about its immediate effect on the legal community and its affairs are more evident:

Routine calendar matters and motions can be handled remotely. But trials, especially jury trials – the “heart” of the legal system – require in person involvement. I suppose, some day in the future, jury trials will be conducted by video conference. What a bizarre, but not necessarily improbable concept. Imagine the difficulty of preventing jurors from being tainted or influenced. But, back to reality, the virus has disrupted trial dockets. All trials have been continued until judges and their staff, attorneys, witnesses and jurors can appear safely together. I’m guessing, which is as valid as anyone else’s, that the first criminal and unlawful detainer cases, which have priority, will not be tried until the latter part of 2021, if not the beginning of 2022. And those matters will require the involvement of many judges presently sitting in civil courts to assist in reducing that overflow. With that assumption, I don’t foresee civil cases in Los Angeles County going to trial until 2023 at the earliest.

Personal contact in the practice of law is currently the exception – Zoom mediations and depositions are commonplace and accepted. Apparently, too, the law office as we knew it, once bustling with human activity, is a rarity. Attorneys now often work from home, appearing telephonically on court calls and mediating and arbitrating by Zoom. Clients and insurance carriers also very much appreciate not having to pay for their attorneys’ and agents’ travel expenses and traveling time.

The nature of the practice of law in the future is uncertain – When the virus is behind us, will attorneys return to their offices or continue to find it more economical and practical to work remotely? Will attorneys want in person rather than Zoom mediations? I believe it will be a combination of both – we’re social animals and both enjoy and need human interaction. The youthful attorney can probably benefit more from the personal contact of the more experienced counsel. Some clients require literal handholding. Some attorneys believe subjectively that in person mediations are more effective. Nonetheless, like the demise of the law firm library in the early 90s, the practice of law will adapt to the changes and adopt the benefits – firms will reduce the size of their offices and many attorneys will continue to work remotely. And the majority of mediations will continue to be conducted by Zoom because participants don’t have to travel, the procedure provides a better use of one’s time and it’s as effective as in person mediations. It’s the new normal.

In the meantime, be well!

Copyright Michael D. Marcus, September 2020

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