Trends in remote work and litigation in the legal sector

The legal industry has faced many challenges during the COVID-19 pandemic, including the shift to remote work, adapting to remote litigation, and increased competition for talent. While it remains to be seen whether the legal industry will embrace remote work and litigation permanently after the pandemic ends, law firms that adapt to these challenges may be better positioned to succeed in the world. post-COVID.

How is the legal sector adapting to remote work?

After more than a year of maneuvering through a global pandemic, employers are taking action to adjust their workplaces in the post-COVID-19 environment. Many offices are slowly converting to more permanent remote work to ensure employee safety and comply with evolving nationally defined OSHA standards. COVID forced abrupt changes in employment policies shaped a new kind of workforce towards the end of 2020, and affected the labor market.

As offices get used to their new labor policies, what can lawyers and legal staff expect from their partners once the dust settles? Some of the major changes in law firms nationwide include:

  • Law firm managing teleworkers

  • New types of lawyer-client relationships

  • Work-life balance for all company employees

  • Changes in billable and firm expenses

  • Virtual courts and arbitration hearings

While the legal field has historically relied on an in-person workforce, law firms have made drastic changes not only to ensure workplace safety, but also to maintain productivity during the pandemic. Michelle fivel, a partner with Major, Lindsey and Africa, a leading law firm, commented on recent law firm management overhauls:

“It’s an incredibly demanding job. It’s a 24/7 job, whether you’re in the office or on the beach on vacation. The vast majority of lawyers, they are never off the grid. You have to trust people to be their own bosses and to be professional, responsive and hardworking. And it will have to be to be successful, whether you are sitting in a business office or inside your home office. I think it’s a huge improvement, especially since I started training.

According to Edina beasley, a general manager with Major, Lindsey and Africa ‘s In-House Counsel Recruiting Group, COVID-19 changes have impacted the legal industry hiring and recruitment process.

“There is a war for talent and lawyers are more powerful than ever. For most of the lawyers I speak with, being allowed to work remotely has become essential, and for many, their employer’s impending return-to-work policy motivates them to take a step. That said, with client demands at an all time high, law firms have been creative and aggressive when it comes to creating incentives to attract and retain talent (e.g. pay increases, bonuses long-term flexible working arrangements).

Law firm management often struggles between keeping the staff they have (in line with their state’s coronavirus mandates) and keeping the clients who keep the firm afloat. While the shift to remote working presented challenges initially, adopting flexible home work policies offers the opportunity to create lasting improvement for law firms in the future. Additionally, legal organizations with flexible working options appeal to both current and future staff and clients.

“They try to focus on the positive and practical aspects, as well as the cost savings for their customers. Not having to get on a train or on a plane or even just in a car and accumulate those hours to go and return from some of these obligations, ”added Ms. Fivel.

Switching to remote work was not the only challenge encountered during the pandemic – law firms also had to adapt to conducting litigation virtually.

What does a virtual trial look like?

Structurally, a virtual lawsuit works just as a traditional litigation would. However, conducting a prosecution through a screen presents unique logistical challenges. Melanie Baird, partner of Blake, Cassels & Graydon LLP, highlights the evolution of the daily process.

“Electronic testing requires more logistical advance planning,” she said. “In the Federal Court in Canada electronic trial protocols are now developed with the judge and lawyer at the pre-trial management conference and cover the technology to be used (including the virtual platform); how documents will be submitted, viewed and given to witnesses; the configuration and rules for witnesses appearing virtually; […] Items that, when testing live, had standard practices and would not have required the same level of pre-play.

In some cases, dealing with these logistical challenges has revealed unprecedented benefits for lawyers. Because a virtual trial means in-person appearances are no longer necessary, witness coordination becomes considerably easier. “Without the need to travel, the availability of witnesses can be managed in real time, which means more flexibility in appearance time,” said Ms. Baird. “While this doesn’t resolve all scheduling conflicts, it also means fewer witnesses have to be heard out of order. “

In other cases, a virtual trial has obvious drawbacks. Ms. Baird specifically mentions the cross-examination process. “[It is] the one thing that will never be the same on Zoom again, ”she said. “Nothing replaces the live and in-person cross-examination of a witness on the stand.”

Is remote litigation here to stay?

COVID-19 has prompted a series of changes in the profession, and those changes will certainly continue as the world adjusts to a new normal. While the litigation process is unlikely to ever become fully virtual on a permanent basis, some of these changes are here to stay for the foreseeable future.

A likely candidate is the adoption of certain technologies. Out of necessity, many courtrooms now hold hearings remotely, using services like Zoom, Webex, and Microsoft Teams to ease the process. As Ms. Baird notes, these tools will likely remain in use after COVID-19 is gone. “COVID-19 has accelerated efforts to modernize technology in Canadian courts that were progressing slowly before the pandemic,” she said. “Some courts, including the Ontario Superior Court of Justice, have implemented electronic document sharing platforms like CaseLines to help courts and lawyers electronically manage documents before and during court hearings.

Remote litigation also provides increased public access to court proceedings – another change to the status quo that is unlikely to be reversed. Through the use of live broadcasts, the media and other interested parties no longer have to sit in a physical courthouse to watch a trial. This is a unique benefit that emerged in the wake of COVID-19, and according to Ms Baird, it resulted in a significantly higher participation rate in trials that might otherwise have been conducted in person.

What Changes Should Law Firms Make After COVID-19?

While the COVID-19 pandemic has presented challenges for the legal sector, it has also offered a myriad of opportunities for improvement and innovation. Law firms that adapt to the new normal presented by the pandemic will find themselves in a better position to manage future disruptions and attract the best talent and clients to their firms.

“By changing attitudes towards working from home, COVID-19 may have forever changed the way we work,” said Ms Beasley, “One thing is clear – the remote and flexible working arrangements in private practices. attorneys and in-house legal services have been a necessity over the past 18 months and they are here to stay.

It appears that taking a flexible approach to the changes presented by the COVID-19 pandemic is effective, and this also applies to moving to remote litigation. In some jurisdictions, a type of “hybrid trial” has arisen during the pandemic, where the judge and lawyers are in a physical courtroom, and all other participants virtually attend. Although the practice originated primarily from COVID-19 security measures, it is entirely possible that the trend will continue long after the coronavirus has subsided. “For hearings that do not require witnesses, such as appeals and some motions, virtual will likely remain an option in certain circumstances,” said Ms. Baird. “In addition, courts are likely to be more willing in the future to allow certain witnesses to appear virtually when circumstances warrant.”

Copyright © 2021 National Law Forum, LLCRevue nationale de droit, volume XI, number 250

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