Pandemic I: What we’re up against

There is a line of thought within the legal community that the SARS-CoV-2 pandemic represents an opportunity for the legal sector to modernize.

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.

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.”



16 Comments

  1. Simon Tupman

    Excellent piece as usual Jordan. And no folks, this is not an April Fool’s Day joke!

  2. Harry Clark

    Fantastic insight Jordan, a thorough breakdown of the troubling times we find ourselves in.

  3. Sharon Sturges

    Thank you Jordan, the one silver lining out of this human tragedy is that it can be the catalyst that propels the courts to finally change to a solutions based and user centric approach.

  4. Roxanne Jensen

    Thank you, Jordan, for zooming out and focusing on the critical, human-centered need to reimagine the system.

    I live in the world of your topic 3: law firms and their work on behalf of clients. While I fully agree that our primary focus needs to be on the system right now, I also believe (somewhat contrary to your thesis here) that firms can and must continue their focus on client-centered business models, which are still “innovations” for many. Just as firms matured their approaches after the Great Recession, they must do so again, increasing the rate of evolution to support the reimagined system well. For example, approaches like full implementation of industry groups will help, executing the model into all the operating systems that make firms work (finance, talent, governance, comp, BD, etc.). We don’t have 2+ years to figure this out (which is in my estimation the timeframe it took many firms to begin even to understand the need to shift business models after the Recession), much less implement the ones that serve their clients well and leverage their unique gifts; we have a year or less. These efforts need to move in parallel. First things first: firms need to assess their financial positions in light of their practice strengths and drivers, in order to survive. But in short order, they need to focus on what they do well and optimize, moving in parallel with the systemic redesign, or there won’t be firms to serve clients week in the new system. The tolerance for inefficiency is know and will remain lower than ever before. I don’t think you disagree with this and it will I’m sure be the focus of your topic three; but to the extent your thesis intimates that the types of evolution we’ve been working on for the last 12+ years should slow or even stop, my take is that they need to accelerate, within the framework of the reimagined system.

    Thanks, as always, for your work.

  5. Patrick J. McKenna

    Jordan, for what it’s worth, I received this at the beginning of the week. Using an Artificial Intelligence platform which combines both machine learning (ML) and human intelligence (HI) in a symbiotic loop, a US-based colleague of mine aggregated crowd-sourced predictions from nearly 3,000 professionals with some fascinating results. The question posed: “What is the earliest date by which the FDA will approve the first COVID-19 Vaccine?” What did the crowd say? In a mass show of optimism, the community predicted a vaccine approval date 8.64 months from now – or by December 19th, 2020 (the week before Christmas) – which would give us all something to be truly thankful for.

  6. ALEXANDAR PAVLOV

    Thank you, Jordan. I feel inspired to read about this huge change which is coming. I am thinking about the situation in my country Bulgaria and about my personal choice which I made in 2014 when I became the only public notary from Sofia, the capital of Bulgaria who voluntarily resigned.


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