Washington Lawyer - September/October 2020 - 6

FROM OUR PRESIDENT

PANDEMIC CHANGES

Tracey Salazar Photography

Mater Artium Necessitas
By Geoffrey M. Klineberg

O

f all the Latin phrases that
lawyers are familiar with, few
may be as relevant to us today
as the one that means "necessity
is the mother of invention." As the
legal profession transitions from
a period of virtual total lockdown
to a cautious, socially distanced
environment, it is worth pausing
to reflect on how we have had
to modify the way we do things
and whether some of those modifications might be worth keeping.
Perhaps the most visible adjustment compelled
by the pandemic occurred at the U.S. Supreme
Court, which conducted oral arguments in 10
cases by conference call. Because even the
relatively small number of seats usually available
to the general public was now off limits, the
Court livestreamed the audio so anyone could
tune in and listen to the back-and-forth in real
time. Live debate about some of the more fascinating issues of the term, including Native
American rights, religious liberty, the details
of the Electoral College, and the various subpoenas of the president's financial records, was
suddenly available to anyone with a computer
and a broadband connection. Chief Justice
John Roberts's method of calling on each
justice to ask questions arguably diminished the
free-flowing nature of a typical argument, but
it allowed the justices to pose questions more
clearly and gave the advocates time to focus on
their answers without fear of interruption.
Although no one seriously suggests that conference calls permanently replace in-person oral
advocacy, it is difficult to overstate the value in
providing broad public access to the Court's

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proceedings as they happen. After having had
to adjust to a new way of conducting oral arguments, the Supreme Court should seriously
consider continuing livestreaming even when
in-person oral arguments resume.
Federal and local judiciaries have made similar
adjustments, and the results have generally
been encouraging. Judges who have often
resisted technological innovations have had no
choice but to give them a try. Not only appellate
courts have conducted oral arguments by video
conference, but trial courts also have used the
technology to hold scheduling conferences,
evidentiary hearings, civil protection order
hearings, and even some jury trials. There is, of
course, a whole host of issues that arise when
conducting judicial proceedings in this way,
including questions of public access to judicial
proceedings, a party's right to counsel and
due process more broadly, and the Sixth
Amendment's Confrontation Clause in criminal
cases. But the pandemic has required judges,
lawyers, parties, and the public to be flexible,
understanding, and accommodating - positive
qualities that have often been in short supply.
In fact, technology has provided the legal profession with some distinct advantages during
the COVID-19 pandemic. For example, because
of health concerns parties no longer have to
wait all day in crowded courthouses for their
matters to be called. Instead of having to take
a day off work and arrange for child care, parties
have been able to appear by video conference
or by telephone to have matters heard at
an appointed time. By forcing judges and
court staff to adapt to the requirements
of social distancing, the coronavirus has laid
bare many of the inefficiencies and hardships
imposed by the "traditional way of doing
things."
Of course, we cannot let our enthusiasm for
innovation and the prospect of expanded

SEPTEMBER/OCTOBER 2020

access and efficiency allow us to lose sight
of the systemic and pervasive inequalities
that make access to even the most basic technologies beyond the reach of so many of our
fellow citizens. The right to appear for a scheduled hearing by video conference sounds like
a great idea, but if you don't have high-speed
internet access and a laptop, or even a smartphone, that newfound flexibility is of little help.
Legal services providers must meet their clients
where they are, and the experience under the
pandemic has underscored the importance of
that principle. Jurisdictions must find ways to
make public broadband and computers more
widely available to ensure that all parties can
safely and efficiently use technologies that
so many of us take for granted.
As lawyers, we are probably of two minds
about these technological innovations. We
appreciate the efficiency of not having to
travel and the benefits of conducting business
remotely when everyone is appearing by video
conference, but we also realize how much we
miss by not having a direct, in-person connection with our clients, witnesses, and even
judges. As we look ahead to practicing law in
a post-pandemic environment, we should
embrace those genuine innovations that circumstances have foisted upon us while also
working to ensure that we never lose sight of
our clients' interests.

Connect with Geoff at gklineberg@dcbar.org.
Washington Lawyer - September/October 2020

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