Atlanta Law

The Coronavirus pandemic that has hit the globe is causing all of us to adjust how we live, work, and play. Lawyers are no exception to this. In order to continue to live up to the calling that requires attorneys — particularly litigators — to be custodians of our society’s ideals, there are a few things that should be done during this world-wide pandemic.

You Must Resolve Your Cases

Attorneys are called on to resolve disputes, which can be difficult during normal times. The best thing for a litigator to do is to put on his or her “closer” hat. More than ever, clients are losing income. It does not matter if you represent a plaintiff or a defendant — the downturn in the
economy affects everyone, and it is not known when the economy will bounce back from this pandemic. Clients are also in shock and disoriented. Defendants may be wanting to solely focus on business operations and not deal with lawsuits. Plaintiffs may want their lawsuit resolved sooner rather than later because of their current circumstances. Attorneys must be aware of these issues, while still balancing zealous advocacy and not selling the client short. Getting opposing counsel to come to the table is critical during this difficult time. Likewise, court dockets — which are backed up and trials delayed — will appreciate the civility employed by litigators to resolve cases.

You Must be Efficient

While the Coronavirus pandemic has taught us all to be more aware of personal hygiene, it has also forced businesses to become more efficient. The legal field, in many ways, is also a business. Law firms across the nation have transitioned to remote work for attorneys and staff alike. Attorneys — just like remote workers across the nation — are having to juggle work, family time, and schooling children. Legal work requires writing, editing, re-writing, analyzing, and researching, among other skills. While silence is key to these tasks, it is likely not available in prolonged periods right now. Using your time effectively is more critical than ever. Whether this means early mornings while the house is quiet or late evenings when everyone is in bed, squeezing in work and keeping clients up-to-date needs to happen.

Keep Using Discovery

The courts need not be involved in the discovery phase of a lawsuit — unless there is a need for motion practice or hearings due to disputes that cannot be resolved without court intervention.   Use of requests for admissions (RFAs), requests for production (RFPs), interrogatories (Rogs), and depositions are ideal ways to move your case forward during this time. While depositions may be difficult due to social distancing requirements, these can be done via video conference — although, admittedly, they are not the same as in-person depositions. That being said, litigators must be patient with opposing counsel because this time requires this type of civility.

The Case Must Go On

While it is true that the global pandemic has placed us all in an unprecedented position, attorneys must continue to practice zealously for their clients while employing additional patience for those on the other side of the case. In doing so, we can maintain our obligation to our industry while still properly representing our clients.

On Monday, Texas became the first state in the nation to present a trial before a virtual jury. The groundbreaking legal move follows Emory Law School’s jury trial class, which allowed its students to take its final exam via Zoom on April 17. Many Georgia counties have been using videoconferencing for their hearings since April, when the coronavirus pandemic necessitated the closure of the courts, with the exception of certain hearings and bond motions.

Emory Law School found that the trial by Zoom, with real judges and facts from an actual case, had real benefits. Objections were handled in a more orderly manner by raising “objection paddles.” The attorneys and judges could see themselves, which made everyone more self-aware of facial expressions. Sequestration was a cinch as Zoom allows you to place participants in a virtual waiting room with the push of a button. The same can be said of the judge needing a break, to confer with the bailiff or attorneys — simply push a button and the jurors are in the virtual waiting room.

Texas had more than 24 potential jurors log in, who were then guided on selection by two judges. Decades of potential jurors going to the courthouse were turned on its head as the courthouse virtually came to the jurors. As with depositions handled by Zoom, basic instructions were given about background noise and the need for privacy from the rest of the household.

In neither instance did videoconferencing have a negative effect on the proceedings. No technical hiccup was noted. In fact, Zoom capabilities gave all parties the convenience of doing their civic duty from home, without having to deal with morning traffic, the headaches of parking and the general stress and frustration of reporting to the courthouse.

While teleconferencing and videoconferences have been used for various proceedings, no Georgia court has yet announced plans for a jury trial by Zoom as of this date. However, we are clearly on track to follow Texas’ lead, at least with regard to its non-binding jury verdict.

To view a portion of Texas’ virtual jury trial, see this YouTube link.

For EGCR’s tutorial on Zoom meetings, see this YouTube link.

For tips on keeping your caseloads moving during COVID-19, see this article.

With the unique challenge of working and keeping businesses going during COVID-19, having a remote office has become our new normal but it can still be an unknown, possibly even stressful, factor amid these disruptive and uncertain times.

It’s more important now than ever to keep your mental and emotional well-being in check, as well as that of your employees and staff.

SET SCHEDULES 

Keeping a regular, and realistic, schedule is vital. Plan your day as if you were in the office with a start time, lunch time and quitting time. Make sure you allow technology-free time to pamper yourself, whether that’s reading a book, working on a jigsaw puzzle or a soothing bath.

HAVE A DEDICATED WORK SPACE

You don’t need a room specifically for your home office but find space that is to be your work area during work hours. This can be a corner in your bedroom, living room or on your kitchen table. Tell your family this is your work area during your scheduled work times. After hours, it can go back to its intended use.

GIVE YOURSELF A BREAK 

Working from home doesn’t (and shouldn’t) mean parking yourself at your desk 24-7. Your mind and body need breaks throughout the day so be sure to take them, preferably every 30 to 60 minutes. It may be getting up to stretch for a few minutes or getting a glass of water. On phone calls, get in the habit of standing rather than sitting to keep that blood flowing.

BUT WATCH OUT FOR THOSE DISTRACTIONS!

Working from home can be wonderful (saving on gas and travel time with no commute and hey, you don’t even have to wear shoes!) but being at home can lend to a host of distractions. Don’t let your laundry, that Harry Potter marathon or social media impact your productivity.

STAY CONNECTED

That said, social media is a wonderful way to keep in touch, not only with family but also co-workers. The office is not only a place to work but also a method to combat loneliness and isolation. Working from home, especially for extroverts, can create anxiety. So check in with your co-workers, not just to discuss work-related matters but also fun things, like sharing recipes and family and pet photos.

AND GET FRESH AIR

Fresh air and sunshine are a necessity. With fewer people driving, and warmer weather upon most of us, getting away from your desk, out the door and into the environment is fundamental. Not only will it invigorate you but will keep your immune system healthy.

SHARPEN YOUR SKILLS

If your workload is lighter than normal, it’s the perfect time to investigate some online courses that will improve your skills, raise the value of your expertise and give you continuing education credit. As a bonus, it also takes your mind off economic worries.

DON’T FORGET YOUR EMPLOYEES

If you’re in management, it’s imperative not to neglect your employees. Understand that they might be feeling anxious, overworked and even isolated. Make yourself available to address any issues they might have. Have regular meetings by video or phone to keep everyone up to date. Let your staff know the best way to reach you with questions or emergencies. Find out if your health plan offers support for insureds who may need it and pass that information along.

Lastly, smile and breathe!

In 2017 now-retired Supreme Court Justice Anthony Kennedy noted in an opinion on a First Amendment case before the Court that the impact of social media in the cyber age was revolutionary. Indeed, Justice Kennedy went further to note it was one of the most important places to exchange ideas and likened it to a public square or park. The case was Packingham v. North Carolina and it reflected Justice Kennedy’s position that the public forum doctrine should evolve with the times, and not leave new forums of debate to remain unprotected.

The Legal Battleground

The question now is where does this leave the future of free speech in the context of social media. As communication evolves so do standards of private platforms, attempts at censorship by government actors, and the rise of extremist speech – all happening in the world of digital media.

Government blocking users: Government officials removing, or even blocking, critical comments online has become more and more prevalent. Another example of this is the blocking of speakers using critical language on Twitter feeds or comment pages on government websites. These actions violate the principles found in the landmark 1964 First Amendment case, New York Times Co. v. Sullivan.

Private censorship of speech: Much of social media’s censorship, however, is not initiated by the government but rather by private entities – specifically, the social media companies themselves. These platforms monitor content that violates their own terms-of-service agreements which, in turn, are reacted to by outcries of censorship. Recent examples include a controversial radio show host being banned from Facebook, Apple, and Youtube for engaging in hate speech.

Policing extremist content: Private entities, unlike the government, are not subject to First Amendment constraints. Accordingly, their obligation to regulate private expression that calls for violence or advocates hate is unknown. The First Amendment to the U.S. Constitution protects hate speech, unless it crosses into narrow unprotected categories of speech. These include incitement to imminent lawlessness, true threats, or fighting words.

As can be seen, the age of digital media continues to evolve. Not just by the platforms that are available, but by the public’s use of this platform, which is becoming more global and more polarized as issues are easily debated by millions online. The question is how quickly the law will catch up to the digital age and how, exactly, it should approach these important concerns.

For more information on free speech, visit the U.S. Court’s website or The Freedom Forum Institute.