This panel looked at how Covid has affected the legal professional and how it will affect the practice going forward. The panel consisted of Judge Elaine Hammond (Bankr. N.D. Cal.), Judge Christopher Sontchi (Bankr. D. Del.), Judge Laura Taylor (Bankr. S.D. Cal.), Matthew Feldman of Wilkie Farr and Stuart Gold from Gold Lange Majoros Smalarz PC. This was the last session of the conference that I attended and one of the most interesting. Some of the topics discussed included a nurse in scrubs doing her reaffirmation hearing from the breakroom, a judge conducting court from his dining room table and a law firm with story time and honey on the roof. And then there was the vitriol seeping from online hearings.
Innovating Through Covid
While Covid has been bad for the nation, it has encouraged some innovations in bankruptcy. Mr. Gold explained that allowing 341 meetings to be conducted remotely has been good for debtors. They don't have to take off work, arrange for childcare or pay for parking. It also benefits debtor's attorneys who don't have to travel to a specific location for a creditor's meeting and makes it easier for creditors to participate.
Judge Taylor said that having reaffirmation agreement hearings remotely was another benefit. She gave the example of a nurse in scrubs attending her reaffirmation hearing from the breakroom. However, she cautioned against doing reaffirmation hearings by phone. She said that one of the greatest mistakes she almost made involved a couple with two vehicles, an expensive car that the husband, a realtor said he needed for work, and a minivan. As the husband was explaining how important it was to keep up appearances, the wife was shaking her head. Judge Taylor allowed the couple to reaffirm the minivan instead. In another case, a couple in their 20s sought to reaffirm a debt on a grave plot. Judge Taylor saw that the wife had tears streaming down her face. She asked the wife why the grave plot was so important to her. It turned out that the couple had lost a child and that their grave plots were on either side of the child. She said that if she had not been able to see them, she might have denied the request.
Judge Hammond said that when the court introduced an electronic filing box for pro se parties, they realized that most filings came in on Saturdays and Sundays. Since the physical intake window was only open 9-4 on Mondays through Fridays, the electronic filing box opened up the ability for pro se parties to participate.
Impact on Negotiations and Civility
Mr. Feldman said that one thing that has been lost with virtual hearings is the ability to negotiate on the courthouse steps. He said that when parties see each other in person and have to stand before the judge, they are more likely to negotiate. He added that chapter 11 is all about negotiation. He said that one thing he is doing is setting regular Zoom calls with creditors to maintain a sense of engagement.
He also said that judges should be more proactive in requiring parties to negotiate. He said that in a virtual world, it is easy for parties to get entrenched in their positions. He said that Zoom mediations make the process more accessible and are here to stay. He said that when parties are not speaking to each other, the court should force them to mediate even if it is just for one session.
Mr. Gold said that being able to negotiate was a strong skill in consumer cases as well. He said that law schools should be teaching negotiation and settlement rather than just trial skills.
Judge Sontchi echoed the sentiment that not being present in person inhibits negotiation. He said that people aren't spending the 30 minutes before a hearing talking and instead were busy preparing their outline. He said that we've evolved to speak face to face and need to be within six feet of each other. He said that Zoom is just not the same. He said that a lot of mediation is breaking down walls between people and that it's harder to do that on video. He also said that fifteen years he thought mediation was overdone but he has totally changed on that and admits he was wrong.
He did say that Zoom was a big boon to creditors who may now participate by video for free rather than paying to appear by phone. (Ed.: Prior to Covid, Delaware used a system called Court Call in which attorneys had to register to appear by phone and pay for the service).
Mr. Feldman said that it's too easy to be impolite in video hearings and that it's harder to behave that way when you're walking into the courtroom together. He said that it seems that the level of vitriol in hearings is elevated. He said that it's so much easier to be nasty when you are not with them. On the other hand, he said that mediation forces you not to behave that way.
Judge Sontchi echoed that the behavior of lawyers has changed and that it poses a problem for maintaining courtroom discipline. He related that when he first began to do remote hearings, he did the from his dining room and did not wear a robe. He said that may have made a mistake because it added to an informality that made it easier for people who weren't repeat players to act very aggressively, not just with each other but with court.
Mr. Feldman said that he was in favor of forced mediations. He said that he has no problem with the judge saying you're going to have a mediation. If it works, it works. He added that part of being a lawyer is managing your client. This means managing their expectations and encouraging them to be realistic about a case. He said that the best cases are those that resolve themselves voluntarily.
Judge Taylor had a different perspective on forced mediation. She said that it costs big money to mediate. She said that if parties don't want to mediate, it just doesn't work. She said at the end of the day I'm not going to waste their money.
Mr. Gold added that mediation can be valuable in consumer cases and noted that his district maintains a panel of volunteer mediators.
The Future of Hearings
Judge Hammond asked the panel how much of court is going to stay on video.
Judge Taylor made a plea for courthouses and courtrooms. She said that there are three reasons why we will always have a need to do things with feet on the ground. The first is trials. She described Zoom trials as ranging from “meh it was ok” to “the single worst trial experience in my entire life.” Second, she cited the disparity between pro se parties and those with lawyers. Finally, she mentioned the vitriol that has arisen and said that she could have controlled behavior better in courtroom.
She said that they were going to continue to use aspects of virtual technology. She gave the example of allowing minor witnesses to appear remotely.
However, she said that there was something important about being present to parties in front of her. She said that when a judge rules on a contested matter, “you make a temporary friend and a permanent enemy.” She said she was giving bad news to somebody all the time. She said she didn’t want to become deadened to the process.
She added that if you don’t obey my orders, you are not going to explain it by Zoom.
Judge Sontchi said that he had just an in person hearing the prior week. He said that he was so happy to have people in my courtroom. He also said that it gave him better control over the process. One witness was going on for half an hour. He figured out that the witness was reading from notes and made him share them with the other side.
He said that it was a mess and that if he had been on Zoom, he never would have known.
Mr. Feldman spoke about the additional roles for personnel when a hearing was on Zoom. He said that they would gather in a large conference room and that associates would be asked to pay attention to specific participants. He said it is very difficult for the lawyer on point to pay attention to everything.
Judge Sontchi said that with social
distancing requirements, it was going to be very difficult to meet the
requirements without limiting the number of people who can be in the courtroom.
He said that a hearing with just four parties might involve 25 people. He also
asked how much pressure am I putting on people who don’t want to travel for
health reasons.
He said that he would keep first day hearings on Zoom. He said that having in person first day hearings requires a colossal moving of people to get them there on 24 hours’ notice.
However, he pointed out that virtual hearings depend on operating on a waiver by the judicial conference. He said that they would continue to do continue to do remote first day hearings as long as they were allowed to do so.
Judge Taylor said that she has employed a veto system. If one person objects to in person hearings, they will be conducted virtually. She said that if someone has health concerns, requiring everyone to attend virtually levels the playing field.
She said that in smaller cases, there is an access to justice problem. People have different access to technology. If one firm has tech skills and one doesn’t, that say s come into court room. She doesn’t want the under-techeHd firm to have the perception that I’m being outlawyered with all this technology.
The Future of Law Firm Practice
The panel was asked how to preserve firm culture in a time of Covid.
Mr. Feldman said that his firm, Wilkie Farr, had prior experience going remote. In in 2019, a helicopter hit their building and they went from live to remote in half an hour. The experience encouraged them to invest in technology so that when Covid hit, the transition occurred seamlessly.
He said that Covid had forced him to think about what you lose and what changes permanently. Their firm, which has a thousand lawyers has had 200 attorneys turn over during the pandemic. He said that no one has met any of them.
He said that AmLaw 200 firms are not going to be in person in the office five days a week anymore because the associates won’t tolerate it. Requiring everyone to report for a traditional work week would be a competitive disadvantage.
He said that we do a lot more training and a lot more connectivity. He said that one attorney leads virtual yoga. At 11:00 a.m., every morning an attorney with young child will read a children’s book as a way for attorneys to connect with their families.
However, he said that connection and training is not a substitute for in person interactions.
He said that no one wanted to be in New York City during the pandemic. He said most associates gave up their apartments and moved back to where they were from.
Given that reality, he asked the rhetorical questions of how do you supervise, how do you train? He said that associates miss out when they lose the ability to meet with a senior attorney.
He described their efforts as a work in progress and said this is the challenge that worries me. He worried about the 4th year or 5th year associate who has not been properly trained and may not be of quality to move out.
On a lighter note, he said that Wilkie Farr put beehives on roof of their New York headquarters and now they give out honey from their hives.
Judge Sontchi talked about the steps the court had to take to adapt. He said that at first, they tried Skype for Business but that didn't work out. Then they went to Zoom. He said that as we come out of out of Covid, we need to be more careful and inclusive. He said that when people talk about going back to normal, we don’t know what that means He said that it's not going to be the world that existed on March 1, 2020.
Judge Taylor said that sanctions were one area where she would be inflexible. She said that for discipline issues, she wanted to see people in person. She likened it to being sent to the principal’s office.
Judge Sontchi commented that in a year and a half he has only had one request for an in-person hearing.
Judge Taylor made an appeal to the bar to speak out to say that the courts need money for technology.
Judge Sontchi predicted that we will be mostly live in two years but will still be able to be on remote where appropriate.
A Note on How I Write These Articles
When I attend NCBJ, I have my laptop open and try to take careful notes on what I hear. That means typing really fast and butchering the spelling of words. Later, I take my raw notes and try to form coherent paragraphs. Sometimes I may look up a case that was mentioned and add the citation. Other times my notes don’t make sense to me, and I will omit sections I didn’t understand. In a free-flowing discussion like this one, I may rearrange some topics so that they make better narrative sense. My hope in writing these articles is that I will catch the sense of what I am hearing even though it is beyond my capacity to produce a literal transcript. Sometimes I will contact a speaker for clarification if I think a point is important and I am not 100% sure of what I heard or if I heard something that could be controversial. To the subjects of these posts, I apologize for anything I get wrong and beg your indulgence. If you find any mistakes, I am always happy to revise my work to make it more accurate.
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