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Getting Ahead of the Curve: Future Lessons for Underwriters and Business Leaders in the Aftermath of COVID-19April 21, 2020
The legal world may be transitioning into a different phase of pandemic management—one focused less on the measures used to improve safety, and more on the ongoing enforcement and aftermath of these measures.
Recent studies are now starting to show that the COVID-19 virus is, on average, trending slightly downward in the United States. It is becoming clear that the safety measures put in place
throughout our country are at least starting to work. As a result, the legal world may be transitioning into a different phase of pandemic management—one focused less on the measures
used to improve safety, and more on the ongoing enforcement and aftermath of these measures.
Last month, Californians were given a very public lesson on enforcement. That state’s shelter-in-place order was issued on March 17, before any other states had taken such a wide ranging
approach. Initially, most beaches in Southern California were subject to the same basic restrictions as applied to the entire state. Non-essential businesses were closed and people advised to stay
indoors, but parks and beaches remained technically open. Then photographs published in the Sunday, March 23 New York Times, depicting what looked like a throng on weekend visitors on the
Venice Beach boardwalk, went viral.
In response, the L.A. County supervisor officially “closed” all public beaches, via local order, on March 27. But as the initial lax response to the state’s order revealed, a closure like this is only as
good as its ability to actually keep people away. Fittingly for Los Angeles, it appears that it was the physical closure of beach parking lots that resulted in the eventual drop-off of crowds.
The struggle to formulate enforcement measures forceful even suit to risk, but practical enough to be implemented on the ground, has a long historical precedent in plague times. The Roman
Emperor Justinian dealt with pressures to relax his tax code in the face a countryside decimated by the fifth century bubonic pandemic. Most countries today were quick to extend tax filing
deadlines, with certain European countries extending significant tax accommodations to corporations as well.
But there’s one key factor behind the abundance of these modern measures of short-term fiscal leniency: they are eminently enforceable. It doesn’t take the power of the state to convince
someone to pay fewer taxes. Historical examples of less easily enforceable measures include the quarantines initially put in place in response to the second bubonic plague pandemic, which
ravaged much of Europe between 1347 and 1351. Ship captains went to great lengths during plague outbreaks at that time to circumvent the off-shore quarantines, called lazarettos. For this
reason, when the bubonic plague broke out in Malta, the administration made sure that the rules of ship movements were strictly applied. Infringement of the docking rules could result in the
death penalty in severe cases, or several years on the oar-benches of the galleys.
Historical context helps not just in understanding the challenges of municipal enforcement, but in addressing those challenges as part of our legal and business practices.
A good example can be found in recent executive and judicial efforts in California to relax the strictures of in-person legal appearances. As normally applied, Code of Civil Procedure section
2025.310 and California Rules of Court 3.1010(c) require party witnesses to appear for deposition in person before a court reporter. Paragraph 4(a) of Gavin Newsom’s Executive Order N-38-20,
enacted on March 27, allows for a court to order that party deponent may instead appear by telephone for a deposition. However, neither the executive order, nor any subsequent orders
from the California Supreme Court, mandates that this be allowed.
In fact, the order seems to have more of a suggestive impact than a real one. Courts already had discretionary power to order accommodations in discovery disputes, including regarding in-person
deposition attendance for party witnesses. Even before the state’s recent executive order, if the parties waived the mandate, or if other good cause was shown, the requirement for a
deponent to appear in person could be countermanded by court order.
California also made efforts to relax mail service requirements in order to facilitate remote working environments. But, as with in-person depositions, the state’s executive order simply
allows courts to order electronic service. A party that seeks to serve a document electronically out of necessity due to the corona virus is still subject to the whim of an opposing counsel to agree. In
the absence of an agreement to electronic service, the mode of recourse, even now, is a motion. With many court closed through mid-April, this is often not an option at all.
As such, while seemingly sweeping in scope and ambition, state and judicial orders have been largely toothless when it comes to real enforcement. At most, orders of this nature suggest a laxity of eventual judicial enforcement that affords lawyers more leeway to fashion creative solutions to complex situational problem. Of course, when lawyers effectively work together, judicial intervention is rarely required. It’s in those cases that extend beyond the limitations of professional cooperation that court intervention is most needed.
And then there are enforcement concerns within our own practices. Even though our understanding of the current virus is much more medically precise that, say, that of Londoners in
1600s, the methods of addressing the outbreak are strikingly similar. Essentially, we want to keep sick people away from healthy people. In other words, if an employee is sick we want them to stay
home. But how to enforce this? Some workplaces have attempted to implement mandated temperature checks, in order to screen possibly infected employees. These toe the line between
necessary emergency measures and possible violation of applicable consent laws. We want employees to wash their hands, but can we really effectively enforce that? Requiring employees to
wear sanitary gloves is easier to monitor, but possibly cost prohibitive.
The legal field presents its own specific array of enforcement issues. In an area already notorious for its slow pace, the COVID-19 outbreak provides practitioners with yet another means to impede
the wheels of justice. To be clear, some delays are valid and natural and should be fully accommodated. However, other delays may not be. An attorney looking to postpone the
deposition of a client may now been able to hide behind the impracticability of an in-person preparation meeting. Those looking to delay the outcome of motions, may stand pat on the need
for an in-person hearing, thereby putting off the requested relief almost indefinitely.
And, finally, there’s the issue of jury trials. With the exception of the stopgap continuance of trial dates, judicial orders have to date been largely bereft of solutions for the jury trials themselves.
Indeed, the days of convening hundreds of a potential jurors in a meeting room seem very far off. A push by the judiciary for parties to waive jury rights, or to agree to a reduction in jury panel
sizes, are surely in store. Virtual trials are already being considered, but will require widespread agreement between parties. How far will we as practitioners bend our practices to accommodate
the demands of the moment?
But throughout history the legal profession has proved a resilient in times of pandemic. Historical London again provides a good example. As a result of plague mortality from the Black Death
outbreak of the fourteenth century, the bond between bar and bench, the merging of barristers and solicitors, and the institutional development of London’s law schools were all accelerated. In
the end, according to historian Michael Bennett, the main consequence of the Black Death as far as the legal profession was, “to enhance its standing and entrench its lucrative monopoly.”
The bigger question is not whether the legal profession will survive in its current largesse—history tells us it will—but what institutional changes will affect it in the aftermath of the pandemic.
Recent studies, like that of Siddhartha Mukherjee in The New Yorker, have attempted shift the focus of virus analysis from measurement of exposed people, to measurement of exposure
severity. This is because the severity of initial exposure to a virus can often dictate, quite accurately, a virus’ zenith, or peak virima, and thus its capacity to cause mortality.
Medical workers encounter the greatest risk of high initial exposures. With several more months of doctors and nurses working at great personal peril on the front lines of the virus, will there be a
reduced appetite for medical malpractices claims? In the wake of virus, will juries in a slip and fall case have the same zeal in faulting a grocery store clerk for missing a lane inspection, when it’s
those same store clerks who have become unexpected heroes?
In a plague year, we have all become the victims, the virus the enemy, and the ingrained institutions of society—often reviled in peacetime—the accidental saviors. We should look for
these unusual social inversions to have an impact on our legal practices, long after the minutia of counter-measures and their enforcement have faded.