Consequences, schmonsequences …
Everyone is now assessing risk: to themselves, to family members, to the community, to friends, and so on. Every decision is now fraught with deciding whether it’s worth the risk to go to the store, to get gas, to hang out with a few friends while socially distancing, to run an errand or two. Do we send our kids back to school? Do we get tested? Do we mask up? How to evaluate risk in each one of those situations? “What do you think?” “What do YOU think?”
Everyone is worried about the coronavirus and with good reason. How do you determine what your risk is just by doing normal, or at least what were normal, things pre-pandemic? We didn’t give a second thought to grocery shopping, going to the ATM, opening packages from Amazon, going to work, or going to court. Now, every decision is fraught with some sort of risk assessment as to the possible jeopardy of doing those very mundane tasks. We took for granted hanging out in the courthouse hallways, the cafeteria, schmoozing with counsel that we saw in the courtrooms, and standing in line at the Starbucks without a second thought as to whether there was any risk. There was then. This is now.
The internet has exploded with articles about assessing risk in this time of the pandemic. Just Google “risk assessment” and links abound about the coronavirus and risk. There are lots of questions and no good answers, at least for those who are trying to wend their ways through thickets of information, some good, some not so good.
Deciding how to manage your practice and your clients during this time is not easy. Lots of courts are encouraging counsel to appear remotely, which, while attractive to some, is not appealing to all. Thinking of my court system — the largest trial court system in the country — and how to navigate in-person appearances can be daunting. Only those with business before the court should be there. While masks are required, the court is not requiring temperature checks, but hospitals and medical offices are.
Pondering risk and possible outcomes has taken different meanings now. We have always told clients the “risks versus rewards” of going to trial or resolving it. Risk looks different now. Do we continue working from home as the virus spikes across the country?
In assessing risk, what are the options? Is the client better off rolling the dice at trial? What does the client think will happen? As we all well know, client expectations often have little to do with the reality at hand. Getting the client off that ledge is often an essential part of our jobs.
What are the possible outcomes? It’s often good to create a decision tree, but in the case of coronavirus, which is akin to whack-a-mole, outcomes can be hard to predict and even more uncertain today when prospective jurors are more loathe than ever to report for jury duty.
What does the client believe about the possible outcomes? If your client thinks that you will win summary judgment and wants to be in the courtroom with you when you argue the motion, then you will be in that courtroom, whether you want to be or not. Perhaps telling the client that the court strongly urges the use of technology for remote appearances might help.
Every decision carries some degree of uncertainty. The issue then becomes — and this is personal to everyone — what is your tolerance for ambiguity, for risk? That’s the question we ask every client and ourselves.
The presiding judge here in Los Angeles has issued a new emergency order continuing matters until August 8, 2020. Given how the virus has exploded in Los Angeles County, that date may be extended. Notice the headline in the news release: “Covid 19 pandemic continues unabated.” How does that headline affect your definition of risk?
Wear a mask? It’s required in the Los Angeles County courtrooms, but there are inconsistencies in other courthouses around the state. For example, in San Joaquin County, in the middle of the state’s farmland, a deputy public defender toured every open Superior Court department to check for compliance. Although there’s a statewide mask order extant, compliance has not been 100 percent, especially among law enforcement. When you go to court, do you take an inventory of compliance? Perhaps you should, since the risk of going without a face covering is high.
Is it safe to sit for a bar exam in one of those states that insists on going forward with a July bar exam? Your future or your life? Which is it?
The Los Angeles Times has endorsed the concept of provisional “diploma privilege” for the 2020 law school graduates. The newspaper, echoing the words of many law school deans and professors, opines that “graduating from an accredited law school must surely count for something.” Yes, it should, but there are a number of unaccredited law schools in California. What happens to those graduates?
And then, after the dust has settled on this year’s exam agonies, the Times suggests that it is time to rethink the entire rationale for the bar exam.
It’s up to the California Supreme Court and the Committee of Bar Examiners to decide what to do about this year’s bar exam. Those two groups are surely doing a risk assessment as well. Access to justice or public protection?
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.