Accustomed to in-person hearings and trials, business attorneys scramble to adapt to the COVID-19 era while also responding to a Pandora’s Box of workplace law issues.
From piles of yellow legal pads and towering bookcases lined with impressive, leather-bound tomes to high standards of dress and conduct required in the courtroom, law, historically, has been one of the more low-tech, old-school professions. Heck, one of the seminal films about training to be part of the legal industry is called “The Paper Chase.”
So how are law firms adapting to the COVID-19 era, when legal proceedings have been moved onto virtual platforms like Zoom, and with most trials delayed indefinitely, there’s no need to impress a judge and jury with a finely tailored suit? And how are they meeting the moment for their business clients, many of whom are struggling amid the economic downturn?
“There’s some real upsides and real downsides to the technology piece of this equation,” says Eric Adams, a partner at Shutts & Bowen LLP in Tampa who specializes in construction and real estate litigation. “It used to be, when you had a case in Jacksonville, Miami, Orlando, Pensacola or any of the various compass points throughout our state, it would require travel and often phone attendance was the exception, as opposed to the rule, and video attendance was almost unheard of.”
The coronavirus pandemic has changed all of that, says Adams, 50, who’s been with Shutts & Bowen for 14 years.
“Physical travel for most hearings is not even an option,” he says. “I’ve found it much easier to schedule hearings because you don't have to account for the expense nor the time associated with physical travel.”
‘The workplace itself is becoming largely a virtual universe, even in industries that traditionally didn't operate in that realm. And we have to be ready as a law firm, frankly, to walk in the shoes of our clients.’ Steve Bernstein, Fisher & Phillips LLP partner
The downside — and it’s a doozy — is that jury selection and trials are simply not possible to conduct virtually, meaning Florida’s already backed-up judicial system is even more behind schedule and will be for the foreseeable future. Adams, looking back to the outset of the pandemic, says he had a three-week jury trial scheduled to start on March 16 — five days after the World Health Organization declared COVID-19 a global pandemic.
“The case got rescheduled for September,” he says. “We had a pretrial conference not too long ago, and the judge informed us that it was going to get kicked over to the 2021 docket.”
In an effort to alleviate the logjam, however, the Florida Supreme Court has created a virtual jury trial pilot program. It’s being rolled out in five courts throughout the state: Jacksonville’s Fourth Judicial Circuit Court, Daytona Beach’s Seventh Judicial Circuit Court, Orlando’s Ninth Judicial Circuit Court, Miami-Dade County’s 11th Judicial Circuit Court and Fort Myers’ 20th Judicial Circuit Court.
The 11th Judicial Circuit Court, Adams says, broke new ground when it conducted jury selection virtually, via Zoom, so it didn’t have to gather dozens, potentially hundreds, of potential jurors inside the courthouse. Once the jury was empaneled, an in-person trial was conducted. The trial was about a relatively simple civil matter concerning insurance benefits, Adams says, but the die might be cast: He expects virtual jury selection to be more commonplace.
“The big problem with jury trials isn't so much trying a case while socially distancing,” Adams says. “It's getting a panel of potential jurors from which the jury can be selected.”
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Another prominent Tampa attorney, Steve Bernstein of Fisher & Phillips LLP, says an unintended positive effect of the pandemic is the way workplace law and governance has become more efficient. The 55-year-old Bernstein’s primary area of practice is employment law, and one of his biggest clients, if not the biggest, is the National Labor Relations Board, a federal government agency that enforces U.S. labor laws that pertain to collective bargaining and unfair labor practices.
“Until six months ago,” Bernstein says, “we had 75 years of precedent that encouraged union elections by what they call manual balloting, i.e., employees show up in person to cast their ballot. That has all gone by the wayside and been replaced by mail balloting, which was always available, but generally only under limited circumstances. And lately there's been an increased push on the labor side to move the voting process into the virtual universe.”
COVID-19, Bernstein said, has done nothing but accelerate the pace of change, and that means law firms, which are also business enterprises in their own right, have to keep up.
“The workplace itself is becoming largely a virtual universe, even in industries that traditionally didn't operate in that realm,” he says. “And we have to be ready as a law firm, frankly, to walk in the shoes of our clients. And I think increasingly we're doing that every day.”
Bernstein’s wife and colleague, Fisher & Phillips attorney Christine Howard, 54, says another pandemic positive has been the opportunity for law firms to demonstrate the value of their services to clients, particularly those in the business world who have been struggling with myriad issues related to the shift to remote work and workplace health and safety.
“In March, we basically turned our website into a COVID-19 resource center,” Howard says. “That allowed our clients to access various forms and templates for free.”
As a firm with a national presence, Fisher & Phillips also created an employment litigation tracker that detailed what states had the most workplace legal disputes and where filings were on the rise, as well as the most common types of disputes. The tracker also provided links to the attorneys who chair the firm’s litigation of employment disputes practice, wage and hour litigation practice and workplace safety and OSHA litigation practice.
“The primary area where I have seen clients needing our guidance and counsel is in the area of how to handle remote work issues,” says Howard, who like Bernstein, also specializes in labor and employment litigation defense and employment law compliance. “At first, the questions were all about, you know, ‘What do we do if we get a positive COVID test?’ or ‘What if there's a suspicion that somebody has COVID’? But that quickly turned into, as companies started to reopen, ‘What do we do with employees who refuse to come back to work, and what type of obligations do we have under the Americans with Disabilities Act to allow them to continue to work from home?’”
Questions and complaints around what constitutes an “essential” business or service have also become commonplace as states and municipalities, with little guidance from the federal government, come up with reopening plans on their own. Bernstein says jurisdictional vagaries can affect everything from the availability of unemployment benefits to whether a company has to conduct temperature checks for employees who want to return to the office. The uncertainty has resulted in a barrage of business for firms like Fisher & Phillips and Shutts & Bowen.
“Coaching clients through those aspects is increasingly becoming an important part of our practice,” Bernstein says. “It makes you realize just how challenging the world of an HR practitioner has become. It was always a difficult job, no question, but you superimpose COVID-19 upon it, and what you end up with is a job description that is now six pages long. And that's our main point of interface with most of our clients: in-house counsel and HR practitioners. So, clearly their world has changed and that means our world has changed. We're paid to help them navigate through the challenges."