Burn the ships

Someone emailed me the other day to ask whether I had contracted COVID-19, because I hadn’t posted anything here in several months. I took that as a hint to start writing again.

I’m fine, fortunately, and so is my family, and I sincerely hope the same is true for you. I’ve been active on Twitter throughout this time, and I’ve published three columns at Slaw as well. My absence from Law21 since May is owed primarily to a major project that came my way in the spring and just wrapped up a couple of weeks ago. I’ll be posting separately about that when the project is officially unveiled early next month, since it also marks a significant shift in the focus of my work that I’ll talk about at more length then.

For the moment, though, here are a few thoughts about our progress through the first year of the pandemic and what seems likely to happen over the course of the next one.

● After most Western nations slammed the brakes hard in the spring and slowed the ascent of the curve, we eased off too soon and too quickly, egged on by toxic leadership and hamstrung by confused messaging. We could have learned from New Zealand, South Korea, Vietnam, Australia, Rwanda, Scotland, Uruguay, and other national successes. Instead, we insisted on getting up and going outside while the tornado was still churning. The results were predictable and are terrible — surging cases and hospitalizations, overflowing ICUs, and (in a couple of weeks’ time) rapidly rising death rates.

● As a result, the next few months are going to be really hard. Even if we all went into “full lockdown” tomorrow, which we won’t, the hospitalizations and deaths of people who caught COVID-19 weeks ago are already “baked in.” If the US handles its Thanksgiving as poorly as Canada handled ours last month, you can count on the current surge lasting past Christmas. Some states have already hit ICU capacity; other states and provinces will follow, and it’s an open question whether hospitals and health-care systems in these places can survive it.

● It’s been a terrible year. But there is reason for hope. The recent announcements of very successful vaccine trials from Pfizer and Moderna are well ahead of the schedule most experts had expected. Our understanding of SARS-CoV-2 has vastly increased since March — it’s a multi-system disease rather than a respiratory illness, and we’ve developed better protocols for treating it and helping people survive it. Even though too many people refuse to wear masks, millions more do. And let’s be grateful that everything about fighting this pandemic will get easier starting January 21, 2021.

● I originally figured the pandemic had at least two to three years to run, and I made my projections accordingly. The unprecedented speed of vaccine development inclines me to revise that estimate downward. But. An announcement by press release is not the same as a vaccine in people’s bodies. We don’t know how long any of these vaccines confer immunity. Producing, bottling, distributing, and deploying (in two doses) hundreds of millions of vaccines across just one continent is a massive logistical challenge. Now multiply that tenfold worldwide. Until the pandemic is over everywhere, it’s not really over anywhere.

Among other things, this pandemic has been an object lesson in change management. People don’t like change and will resist it; you can frighten them into change for a while, but the fear wears off and complacency creeps back in.

What you need to do instead is explain what’s happening as best you can, identify the goal you’re trying to achieve and why it’s important, and tell people clearly what they need to do and how they need to do it in order to help achieve the goal. (I’ve just written a cover story for ABA Law Practice magazine on this very topic.) We did that reasonably well in April; by October, we had lost the thread. We need to get it back.

What about the legal sector? When I wrote my mini-series about law and the pandemic in the spring, my feeling was that we were in for a lengthy period of intense difficulty that would likely overwhelm parts of the legal system, but that would also create both the mandate and the opportunity to survey the damage done and come up with new and better ways to run law firms, educate law students, and administer justice. I figured that 2020 would begin a lengthy period of pain and endurance, but that 2021 would begin to generate progress towards improvement and eventually transformation.

In the event, I’ve been pleasantly surprised by the amount of progress that’s been achieved already.

Lawyers took to working from home like fish to water. Six months after lockdown, I don’t know any firms with more than 30% of their workforce in the office every day (most are around 15%), and that number will not grow over the winter. I think everyone-here-all-the-time law offices are done. We’ll see a few people WFH full-time, some in suburban satellite offices (maybe practice groups), and some in the main office a few days a week or full-time. But law firm culture and professional development, both built on the everyday physical proximity of lawyers,  won’t mesh with that, creating more change.

● Some law firms began getting serious about changing up their business models. More than a third of the AmLaw 100 now has a captive law company (or ALSP, if you prefer), and while COVID didn’t cause that surge, it surely accelerated it. Firms have also ramped up their commitment to technology, not just for remote work, but investing in software companies directly, merging to acquire software, designing platforms to help clients buy software, or even building and selling software of their own.  (To say nothing of standalone legaltech investments.) Law firms finally seem to be diversifying their means of production and sources of revenue.

● The biggest shift to this point has occurred in legal services regulation. Utah got the ball rolling by launching a regulatory sandbox that will allow unauthorized providers of legal services to operate on a pilot-project basis while the regulator assesses their reliability and effectiveness. British Columbia followed suit earlier this month, and California is still thinking about it. Expanded roles for para-professionals have also been approved or are being considered in Utah, Arizona, Minnesota, BC, and Ontario. But Arizona went furthest of all, to throw out Rule 5.4 against sharing fees with non-lawyers altogether.

● Not all the news has been good, of course. The justice system has responded less well than I’d hoped, but about what I realistically expected. Zoom hearings are nice and all, but courts’ troubles are multifarious and deeply rooted, while most of the solutions and better ways put forward are still theoretical. I’ve had some encouraging conversations with law school deans, but legal education still has a long way to go. Bar admission in the US has been an infuriating fiasco (#barpocalypse and #bloodybarpocalypse tell you what you need to know), while bar admission in Canada … well, check back here next month on that.

That’s as concise an overview as I can provide of an astonishing six months of upheaval in the world and in the law. For the balance of this post, I’d like to examine the one thing that, to my mind, really stands between where we are today — as lawyers, yes, but also as people and as members of our communities — and where we need to go.

In the final entry of my “pandemic series” in May, I wrote:

We need to appreciate that COVID-19 isn’t only, or even primarily, a public health crisis. It’s a political system crisis, in which a serious threat to public health fully reveals and further exacerbates the failure of disintegrating political systems, public institutions, and social norms. COVID-19 is not “merely” a crisis like the 2007-08 recession — it’s a catalyst, perfectly timed both to signal and to bring about the end of one era and the beginning, for better or worse, of another. The old world is passing away, mostly because it was time for it to pass away and to be replaced by something else.

I still believe that to be true. I regard the pandemic as the culmination or logical end point of a well-worn path of choices and a warning to respond and adapt urgently to their consequences. But what matters more is what you believe about the pandemic, and what everyone else believes, and why.

The distinguishing feature of the last six months has not been an unexpected mutation or heightened deadliness of COVID-19 — it’s essentially the same virus now as it was last December. The key feature of the last six months is what people decided to do about the virus. A remarkably large number of people decided to do very little, to keep living their lives the way they did last year, and many governments chose to allow or encourage those decisions.

Why did people make these choices? Maybe they didn’t want to believe COVID-19 was real. Maybe they believed it was real, but wanted it to be just a random bad thing, an “act of God” with no more meaning than an earthquake, something to be gotten through and moved past.

But I think that in most cases, it was because if people really accepted the truth and seriousness of COVID-19, then they would have to stop living one kind of life and start living another, for an unknown period of time. They would have to let go of the world they knew. They could not, or would not, do that. They weren’t ready.

Here’s another lesson about change management: People don’t change their minds. They change their hearts. They make a decision, consciously or unconsciously, to feel differently about something, and once they feel differently, then it’s the work of a moment to think differently and then act differently.

You’ve experienced this if you’ve ever decided to leave a job. Once you’ve accepted the offer from your next employer, it doesn’t matter that you’ve got two weeks left at your current job — you’re already gone. Your heart is no longer there, and your body can’t wait to follow it out the door. You mentally and emotionally crossed over, and suddenly your present became your past and your future became your present.

All of which brings me to the legal sector. Just as in everyday life, many lawyers are resisting the call to leave behind the traditional “legal world” and start building the next one. They recoil from the prospect of losing the old and familiar environment for the delivery of legal services, and they desperately hope for the disruption to be temporary.

They might very well get their wish. I remain deeply skeptical that the actual deployment of vaccines will go smoothly, and I find projections that we’ll all be “back to normal” by the spring very hard to believe. But I’m obviously not a medical expert, and I’d of course be delighted to see the pandemic brought under control as soon as possible. I’d like to see my kids back in school, to dine out, to travel again. I’d like to see an end to people’s suffering.

But that happy event would risk overshadowing the unhappy reality that our old legal system (not to mention our old world in general) still needs extensive repair at least and complete replacement at most. It would risk obscuring the reality that we have travelled a long way down an unsustainable path, and that if we hop right back onto that path whenever COVID-19 is tamed, we will inevitably wind up in crisis again. In the immortal words of Ed Yong, “Normal led to this.” Going back to “normal” will just bring us right back into the downward spiral.

You might very well feel torn right now, between your admirable hope for a better legal world and your understandable desire to get the old world back. If you work inside or operate or lead a legal entity of any kind, you might experience this feeling as wanting to hedge your bets, to hang back in a holding pattern, to wait and see if change really is necessary or if we can kick the can down the road once again.

But pause a moment, and look down — there are countless cans littered around our feet right now, all of them kicked there by us time and time again in the past. It’s COVID-19 that’s disrupting our lives right now; next time, sooner than we would like to suppose, it’ll be something else. How many “temporary disruptions” do you think we’re going to experience? How many more warnings of imminent system failure do you suppose we’re going to receive?

While I dislike its colonialist connotations, I do feel like the appropriate metaphor right now, for those of us able to lead change in the legal sector,  is to “burn our ships.” We need to commit, truly and fully, to change for the better in the law. We need to take this opportunity to transform the legal world and run with it. If we hesitate — faltering at this fork in the road, yearning to keep all our options open — we risk missing this chance to open up some distance ahead of the tsunami that’s still gathering behind us, gaining speed.

A door to the future has been pushed open by awful circumstances, which hopefully will soon end. But do not let that door close. Wedge it open, and help lead others through it. The sea is still rising behind us.



3 Comments

  1. Lou Milrad

    Thank you, Jordan, for your most sobering insights.

    A rapid change in the delivery of legal services coupled with forced adaptation continues as a reality that the legal profession struggles with. And that includes competition from the ever-evolving online contract subscription businesses targeting consumers and small businesses.

    Fortunately, there are a host of law practice and business level technology solutions to enable the transition to a work-from-home environment. Zoom has become a substitute for face-to-face meetings as well as for coffee and family meetups.

    It’s a different world than it was a few months back and carries with it new client attraction and maintenance challenges for lawyers, particularly those embarking on the practice of law as a new career, and those due to Covid-19 based decisions, who have not been invited back to those law firms where they believed they had a future.

    Welcome to our new world – the one for legal professionals!

  2. Julian Summerhayes

    Morning Jordan

    I’m glad to hear that you and the family are OK. And thanks for sharing this piece. I’d love to know your thoughts on why so few firms aren’t mobilising around climate change, loss of biodiversity and the neoliberal project which has wreaked such havoc on the planet? It seems that firms are still happy to represent those companies whose thumbrints if not feet are all over the unfolding and continuing catastrophe.
    Take care my friend, Julian

  3. Jordan Furlong

    Julian, it would take a book to answer these questions in full, so I’ll merely say:

    – As Jones Day and other firms are discovering, there are serious reputational costs to advancing completely meritless claims as part of an effort to undermine valid elections and endanger the rule of law. If firms didn’t realize that before, they do now, and I doubt the lesson will soon be forgotten.

    – Climate change, like the pandemic, is that rare event in human history that affects literally every part of the planet (just our luck to get two at the same time). But the vast majority of law firms see climate change as a practice area rather than as an existential threat, and I don’t see that changing anytime soon. Give it ten years and a couple of inches rise in sea levels and we’ll see if things change.


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