DTCI: Ruminations on an attorney’s post-pandemic ‘new normal’

There was a poignant nature special from my childhood that came to mind recently. In this special, the bear was hibernating when he was awakened by loud music. He and his companion bear wandered out of the darkness of their cave into a nearby lodge, where they were immediately put to work. The bears began handling multiple tasks in rapid succession. Several jobs later they were returned to hibernation.

Because I prefer my nature specials and bears animated, it turns out I was remembering “Yogi’s First Christmas.” Yogi’s hibernation was interrupted, and he was put to work on snow removal, security and other jobs around the lodge.

While most of us have not had the good fortune to be able to hibernate for any period of time, I did feel a little like Yogi when we finally began to experience the “new normal.” I had just spent a pandemic minding my own business when someone stepped in my office, blared some music and put me to work. I know it was not as sudden as that, but it feels sudden. It feels as if we had all been in our home offices quietly waiting for spring to arrive when spring suddenly arrived.

I recently had six hearings over seven days, and if I had not realized it before, I really understood that courts were open for business and pushing ahead. But it was not just that hearings were getting scheduled and we all were getting busy again. It felt as if we were returning to normal. But how the hearings were held struck me as not quite the same as pre-2020. Two were by phone, two were by Zoom and two were in person.

This feeling that things were not quite the same struck me again a few days later. As I spoke with a witness to schedule a deposition, he asked, “Will this be in person or by Zoom?” In addition to the other questions we usually get — how long will the dep last, where will it be, who will be there — we now have to address whether we have to even be there.

There have been articles, interviews and comedy sketches dedicated to the return to the “new normal.” Do not forget your pants. Remember how to make small talk. I do not intend to cover that same ground. But I do see that things have changed significantly for lawyers. While there are always changes over time, resulting in adjustments to the practice of law, the changes seem to be more sudden and widespread now.

Two years ago, I could ask a court to attend a hearing by phone. For some hearings and courts, that was and is an option. For some courts or types of hearings it was not — either strategically or practically. Certain depositions or client meetings could be covered by telephone.

For the past 15 months, many of these decisions were made for us. State mandates, court orders and judges’ preferences or requirements dictated when hearings were set and how they were held. If a judge told us to attend by Zoom, we did. For the most part, remote attendance where possible was the default. We lived with it and handled it as best we could, but we usually had few alternatives.

Now, we have new considerations for nearly everything we do, particularly as litigators or those who need to work with clients. Some of those considerations are practical: What technology can the court handle? What technology can I handle? Can my client travel to mediation? How is the internet there?

Many of our new considerations are strategic: Should this witness give a deposition by Zoom? What exhibits can be used and how remotely? Should I be in the same room with the witness? Opposing counsel? The judge? Should I meet with my client in person or remotely?

Now we have to really give thought to how a court handles hearings. If we have a choice, should we ask to be in person? When we argue a case on Zoom or by phone, how should the argument change? How do we use exhibits?

This is the “new normal.” We have a new set of questions, concerns and decisions. New skills have to be developed. Some of these issues are familiar, but not quite the same. And they are now “normal.”

“Yogi’s First Christmas” had an unintentionally dark ending. In the end, after all his effort, Yogi slipped back into hibernation before Santa arrived. At least his Christmas picnic basket would be there when he awoke. If only we could be so lucky.•

Scott Cockrum is a partner in the northwest Indiana and Indianapolis offices of Lewis Brisbois and is a member of the DTCI Board of Directors. Opinions expressed are those of the author.

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