Although the COVID-19 pandemic’s lasting effects on modern society are far from known today, there’s little doubt that the disease has prodded a reluctant legal profession into the digital age. During the past few months more lawyers and judges than ever have:
- Participated in remote hearings via videoconferencing
- Closed real estate transactions using electronic signatures and remote online notarization
- Conducted remote depositions, arbitrations, and mediations
- Obtained electronic signatures and remote notarizations on wills, trusts, and other estate planning documents
- Helped clients finalize remote adoptions
- Met with clients via videoconference
- Collaborated with office support staff from a remote location outside the firm’s office
- Officiated at virtual weddings
- Participated in remote bail hearings
- Provided public access to judicial proceedings via videoconference
In some cases, state laws were amended on an emergency basis so that in-person legal proceedings could be conducted virtually wherever possible. The CARES Act (H.R. 748) included $7.5 million to fund increased use of video and telephone conferencing at the federal level. And courts across the country issued orders encouraging, if not insisting, that lawyers take advantage of remote technologies to move their cases forward despite social distancing obstacles.
However, prior to the COVID-19 pandemic, there were few barriers to the use of electronic communications technologies by judges and lawyers. Information technology was pervasive in law offices, and lawyers, along with the rest of modern society, had access to cheap, easy-to-use videoconferencing technologies. “Courtroom of the future” pilot projects were ongoing across the country. Most jurisdictions permitted remote online notarization of documents in some fashion. And electronic signatures were legalized nearly two decades ago.
Clearly, the disruption to normal activities created by COVID-19 was the push the legal profession needed to transition to virtual lawyering in large numbers. The connected, remotely distributed legal profession arrived by necessity, not by choice.
Everywhere there’s interest in keeping the ball rolling. Courts in Michigan (PDF), California, Texas (PDF), and Florida, among others, are forming task forces and issuing COVID-19-related orders calling for even greater use of remote technologies to conduct judicial business—now and after the conclusion of the COVID-19 pandemic.
The need to deliver legal services during the COVID-19 pandemic is driving calls for wider use of technology in the federal court system as well. One example is the Twenty-First Century Courts Act (H.R. 6017), a measure calling for expanded use of technology to improve access and transparency in the federal courts.
The legal profession is following suit. Bar associations in every jurisdiction are rolling out educational programming, such as this Tips for a Successful Remote Family Law Hearing webinar from the Indianapolis Bar Association, designed to help lawyers thrive online.
The New York State Bar Association is offering webinars and articles explaining the ins and outs of Zoom arbitrations, online mediation, remote real estate closings, executing estate planning documents, and more.
The State Bar of Texas offers a collection of educational resources on Zoom videoconferencing for lawyers.
In Washington State, the Washington State Bar Association published guidance on data security best practices while working remotely, among numerous other COVID-29-related articles.
For lawyers who need assurance that it’s all going to work out fine, Florida attorneys David A. Carroll and Patricia S. Beck published Wait! Don’t Cancel That Hearing A Zoom Trial Guide (PDF), a detailed guide to successfully participating in a hearing conducted via Zoom videoconferencing software.
As more lawyers gain experience with remote technologies, it seems certain that digital advocacy skills will become as vital to the legal profession as competence in traditional courtroom advocacy skills.
Greater adoption of remote lawyering will drive innovation among technology vendors, whose products will evolve to meet the specialized needs of the legal profession. Because cybersecurity is tied so closely to a lawyer’s ethical duty to safeguard a client’s confidential information, technological improvements in this area will draw a lot of attention in the future. A case in point: Lawyers followed closely the news that security flaws had been found in the popular Zoom videoconference platform. The New York Attorney General’s Office investigated, after which Zoom agreed to make cybersecurity enhancements to its technology (PDF). A videoconference isn’t a courtroom quite yet, but after being subjected to the daily demands of thousands of lawyers it may very well be someday.
A March 2020 national survey of law firms found widespread—and generally satisfactory—adoption of remote work among law firms. According to Chicago-based consulting firm Red Bee Group LLC, the leading areas of needed improvement identified by survey participants were better technical support for remote operations (38 percent), fewer billable hours (28 percent), and better communication among remotely working colleagues (27 percent).
The virtual future is not entirely rosy. The transition from mostly in-person to mostly virtual law practice will undoubtedly raise novel policy questions. After all, today’s legal system is the product of hundreds of years of experience with public, in-person hearings and face-to-face confrontation. Some lawyers have identified areas where virtual lawyering could create unacceptable risks. For example, remote notarization of testamentary documents is subject to challenge by someone claiming the signer was subject to undue influence from a third-party in the room but out of the camera’s range. And digital evidence, even when created for the purpose of avoiding uncertainty, can be used to supply an additional basis for a legal challenge.
On the operations side, a recent Law360 article Law Firm Staff Face Uncertain Future Post-Lockdown found that the need to respond to COVID-19-related revenue losses is prompting law firms to explore areas where technology can deliver cost savings. Videoconferencing diminishes the need for expensive law office space. And if law firm support staff can work efficiently from remote locations, that factor as well lessens the office space needed to run a modern law firm.
Driven by COVID-19, the pace of change in the legal profession is accelerating. No one—the courts, lawyers or their clients — seems to have any desire or ability to return to professional habits that existed just a few short months ago.