The argument goes that this would be a good time for courts to introduce e-filing, to permit electronic signatures, or to carry out more video-based hearings. This is a chance for law firms, it is said, to shift their practices to the cloud or enable lawyers to work easily from home. It’s an opportunity for law schools to start getting the hang of remote teaching. And so on.
From my perspective, this is like watching a tsunami roar towards the beach where your seaside cottage is located and thinking that now might be a good time to spruce the place up a little.
To the extent this has not happened already, I’d like to suggest a tonal shift in our conversations about the impact of the global pandemic on the law, and a ratcheting-up of their seriousness and urgency, because I’m concerned that some in the profession still think this is primarily a short-term inconvenience.
In ten brief bullet points, as current as I can make them, here’s an I’m-not-a-scientist summary of what we’re up against in this pandemic.
- Nobody had ever heard of SARS-CoV-2 or COVID-19 before December 31, 2019. Today, just three months later, more than 40,000 people have died from it, more than 850,000 people have been infected by it, and literally billions of people are self-isolating to slow the spread of it, causing what looks very much like it will be a long-term global economic recession.
- COVID-19 is not “just the flu.” It is much more lethal and is infecting a planet full of people with no previous immunity to it. It infects all age groups, although it is likelier to kill people 50 and older and much less likely to kill children. Every carrier of the virus, including 25% who are asymptomatic, can infect between two and three others.
- At least 80% of the people who get COVID-19 develop mild to moderate symptoms, which can range from a bad cold to two solid weeks of the worst flu you’ve ever had. Up to 20% suffer more severe symptoms, which usually require hospitalization, intubation on a ventilator, and/or intensive medical care.
- Our best guess right now is that between 0.5% and 1.5% of those infected with COVID-19 will die from it. (COVID-19 deaths might also be under-reported currently.) That does not include people who would survive if given intensive medical attention, but who fail to receive it because hospitals are overrun with COVID-19 patients.
- This is why you and I are locked down at home. Once we stop physically distancing and start interacting with each other, the virus will restart its engines and resume spreading. But while we press the pause button in this way, everyone who was already infected and needs hospitalization has a better chance to get it. That’s what “flattening the curve” means. We’re buying time.
- We’re also buying time to slow the rate at which front-line health-care workers contract SARS-CoV-2 themselves, to acquire more personal protective equipment for health-care workers, to build and buy more ventilators and set up more temporary hospitals, to test people for the virus, and to develop a treatment and eventually a vaccine.
- Most optimistic estimates of the time frames required to accomplish these tasks vary from several months (expand our medical capacity, test a greater percentage of the population, identify possible treatments) to two to three years (develop, test, and produce billions of doses of vaccine). Expect our current lockdown to last at least through the end of June.
- As of today, most of us have been on quasi-lockdown for about three weeks. In that time, the stock market has lost about a third of its value, nearly 4 million North Americans have applied for unemployment benefits, supply chains have been stretched to their most vulnerable, and the IMF is predicting as bad a recession as that which followed the Great Financial Crisis.
- Here’s our dilemma: We can’t stay on even quasi-lockdown for more than a few months without potentially bringing the global economy crashing down and creating misery and chaos worldwide. But we can’t stop the lockdown without inviting hundreds of thousands of deaths, both causing and then amplified by the collapse of health-care systems for both pandemic victims and everyone else.
- A likely outcome is a series of lockdown periods, broken up by short scheduled breaks in which we can work and socialize again, during which time the virus will spread and people will get very ill before we all get sent back inside for a while. This would last for at least one year, quite possibly two and potentially even into a third, until we render this virus another annual survivable influenza.
It is still very early days, and we are still working largely in the dark. Everything changes daily. But one way or another, we’ll have to thread the needle between saving lives and preserving our health-care infrastructure on one hand, and saving the economy and giving people enough money to live on the other.
Every one of us is going to be put to the test, probably several times, before this is over, and so will all of our institutions and activities: economic, political, industrial, agricultural, recreational, scientific, academic, and yes, legal. “We’re just clambering into a life raft. Dry land is far away.”
This is why I’m not looking upon this pandemic as a difficult means to a happy end for legal innovation. To be blunt about this, millions of people are going to die worldwide over the next two years during this crisis. Governments are going to collapse, businesses are going to go bankrupt, economies are going to run into the ground. Perhaps just as bad, social and political norms are going to be corrupted or erased, and protections for the poor and vulnerable are going to evaporate.
In the face of a disaster of this magnitude, it’s easy to become overwhelmed. But we can’t take all the troubles of this world onto our own shoulders, and we’re not being asked to do that. We are being called upon to do whatever we can to help in our own corners of the world, our own communities and businesses and families.
For those us in the legal world, that means focusing our efforts on the justice system, the people who work in it, and the people and societies that the system serves. And believe me, we have our work cut out for us here.
Because in just its first few weeks in our world, COVID-19 has exposed the obvious and unsustainable incompatibility between the way the legal sector operates and what the world now actually needs. It is no secret to anyone that our legal system and its institutions (courts, law practice, legal education, legal regulation, and access to justice) have been gradually breaking down for most of the last 20 years. Let’s not fool ourselves by pretending otherwise — we know that they’re not working well, or even working at all anymore. We just haven’t been able to summon the will to do what’s needed to arrest that breakdown.
This pandemic and its global repercussions are going to accelerate the breakdown of our legal institutions, compressing that long, slow-motion collapse into a period of about 12 months. I am not exaggerating. That’s how long I think we have to hold our crumpling legal system together, while we simultaneously build temporary shelters and new legal institutions nearby and then evacuate people from the old houses of justice to the new ones.
If we haven’t built at least those temporary shelters for the law — assembled and rolled out promising new systems for solving legal problems and delivering justice outcomes — by the spring of 2021, then I really don’t know what will happen. I’m not even sure we have that long.
My next few posts here at Law21 are going to examine how the pandemic, the lockdowns, and the economic crisis are very likely going to mark the end of the old legal world and present us with a time-limited mandate to build a new one. I’m planning to look at three aspects in particular:
- the justice system,
- the lawyer development and licensing system, and
- the provision of legal services by law firms.
For each area, I hope to describe (a) the nature of the system breakdown, (b) short-term triage we can conduct to get us through the worst of the crisis, and (c) outlines for new and better systems that must emerge here at the end of the old ones.
This whole situation is moving fast, and I want to urge you, regardless of what role you play in the legal sector, to take it seriously and find something you can do to help. As you rightly look to protect your own business or organization, as well as the health and safety of your family and colleagues, please also look for opportunities to help your profession and the people it serves, right now if possible. Don’t hold back waiting to see if you’ll be needed. You are.
I want to close with two quotations for us to bear in mind. One is from Dr. Mike Ryan, executive director of the World Health Organization, from a March 16 news conference: “Perfection is the enemy of the good when it comes to emergency management. Speed trumps perfection. The greatest error is not to move. The greatest error is to be paralyzed by the fear of failure. If you need to be right before you move, you will never win.”
The other is from Geoff Gillespie, US Navy JAG Corps lawyer, writing yesterday at Legal Evolution: “Everybody’s a leader now. Against the steep curve of the coronavirus pandemic, each of our actions will have an outsized impact on our organizations and communities. … It’s time to accept our new reality, and move into action.”