May 18, 2020

I recently wrote a blog on how the courts are reorganizing their procedures in preparation for reopening after the pandemic. Now it’s time to tackle our personal workspace.

This topic is close to home because, like most small business owners, I am tackling this exact question in my office. How are we going to go back to work while maintaining proper distance and safety?

Some things are obvious, like no more shared desks or cubicles. And no more handshakes. But what about the water cooler? The coffee machine?

Designs

Many designers are now moving towards closed office designs after years of designing open, collaborative spaces, and they are looking for ways to create contactless working experiences. For example, the Bee’ah Office Building in Sharjah was designed with elevators you call with your smartphone and office doors that open automatically with facial recognition.

Other designers are calling for more ventilation in office spaces, which could be a problem for the average building with sealed windows.

Could this also be the death of co-working spaces? We have seen a huge boost to co-working over the last few years. Big players like WeWork and Industrious have been expanding rapidly. Regus has been around forever, and I have a number of colleagues who have used their offices over the years. This setup is likely gone in the wake of new requirements.

Personnel

Having a receptionist for many law firms seemed like an absolute necessity, but I imagine that firms will be reluctant to bring another person into the office when the job can be effectively outsourced to companies like Ruby.

In fact, I read that there may be laws restricting the number of employees based on the square footage of the office. Managers may need to cut back on employees, making them really consider whether they need Kurt in HR to tell them what they can and cannot wear on casual Friday. Perhaps we can get by without Kurt?

I also think we’ll all need to be more mindful about work that we naturally outsource. For example, office cleaning companies may be under more scrutiny now. We may want to know what they are using to clean the surfaces, how often they clean, etc. This is true for other businesses that come into our office space like shredding companies and delivery companies.

Clients

How we handle clients is interesting as well. No more handshakes make greetings a little strange, and now the eight-person conference room table only accommodates four people. How do we handle the paper that is constantly passed between clients and our office?

The trick here is recognizing what clients want and what your staff wants. Everyone wants to be safe, but everyone’s degree of safety is different. This is especially true if you work with people who are at higher risk, like older people. If your practice is focused on estate planning, you probably need to take their needs into consideration.

I think our views on personal safety fall on a spectrum. Some people have no cares, refuse to wear PPE, and think you’re silly for worrying. They are on one side of the spectrum. Then there are people who wear goggles, mask, and gloves. They carry hand sanitizer in their pockets and burn their mail before opening it. They are on the other side of the spectrum.

Obviously, most people fall somewhere in the middle, but it can be difficult to determine where a client or employee lies and treat them with the safety they expect. Plus, those needs change daily. People may start to feel more comfortable. If we have a second spike in cases, people may trend towards more cautious. Everyone will be different.

Another potential option is to do away with client consultations. It’s a classic mainstay of law firms, I know, but perhaps they aren’t really necessary. I’ve been able to sign clients over the last two months without consultations. However, some clients want the show of a consultation, and I don’t blame them since they’re spending a lot of money. I also suspect many attorneys don’t feel as comfortable selling over the phone. This is something we should all get used to.

The Darker Side – Tracking

The last thing I wanted to touch on is something that will become a big topic over the next few months and years: tracking. We could see a real erosion of our privacy due to contact-tracking efforts.

Cushman & Wakefield, a global real estate company, has installed beacons in its office to track employees’ movements via their cell phone (mentioned here). That should terrify you. The obvious fear is that your boss will now know exactly how much time you spend in the bathroom, but another concern is that we are establishing a police state within our offices. I’m not excited about the direction this is heading.

There has also been talk of trying to use infrared detectors to determine if someone has a fever in order to bar them from entering a location. Not only is technology not ready for this (because it’s not good enough), but fever doesn’t prove someone has COVID. We need to seriously consider the black-listing that can occur when people receive a false positive. They may feel obligated to quarantine, or they may be forced to quarantine depending on who takes their temperature. This should concern all of us.

What Will Actually Change?

Many of you are considering all the reasons why none of the above things will work. How can we possibly redesign our offices or change up our personnel? Frankly, there isn’t much I can actually do to my office. It’s only 775 square foot, I can’t exactly put up walls or install cubicles. I only have two employees; can I really spare one just to make some extra space? The answer, many times, is no.

My guess is that many of these changes will not actually occur. Many large companies will be forced to move away from their beautiful open concepts, but I suspect that most small companies will make no changes.

Christos Lynteris, co-author of Plague and the City and a medical anthropologist, says that we may not see any changes (article here) due to COVID. In an article by The Guardian, he says that “epidemics and pandemics have their own temporality” and that “panic dissipates very quickly and people rarely follow up.” He referenced the Hong Kong SARS outbreak in 2003, where they determined that the disease was spreading via leaking sewer pipes but then made no overhaul of the plumbing system. He says, “It has to keep coming back for us to take any notice.”

Will any changes happen? I don’t know. We’ll have to see if any new laws are passed to require any of the social distancing. Without them, our offices may go back to normal within a few months.

May 13, 2020

My practice is primarily located in Kendall, Kane, and DuPage Counties in Illinois. Most courts in my area are closed except for essential cases until the end of the month, but my understanding is that DuPage may be opening as soon as next week (though, only for Zoom hearings). I have received a flurry of orders from Chief Judges of each of the counties, detailing new procedures for court given the pandemic.

Some of these procedures will ease the transition back, but I’m afraid they do too little to solve the most pressing problem: these counties see hundreds of people through their doors every single day, mostly between 8:30 – 10:00 in the morning.

I’ll discuss the procedures offered, and then I’ll give some of my thoughts on possible solutions.

Agreed Orders

In the Kane County Civil Division, attorneys are allowed to submit agreed orders through a general email managed by the Clerk’s office. Each order must include a cover letter and any subject motions and supporting documentation. Judges can do whatever they want with the orders.

In DuPage County, the order states that the agreed order should be sent to the judge’s secretary. No other stipulations exist, but, like Kane County, the judges can do whatever they want with the order.

These provisions exist to reduce the number of litigants in the courtroom. There is no direction for pro se litigants, other than to say that they can also take advantage of these procedures. I don’t know how pro se parties will even know about the procedures, but I’ll discuss that more later.

Zoom Appearances

Kane County allows for Zoom appearances/hearings with some stipulations. It must be initiated by the judge or by joint motion from the parties. Everyone must be represented by a lawyer. If witness testimony will be taken, both parties must sign a waiver of appeal on the issue of telephonic testimony. In order to schedule it, counsel shall email or jointly call the civil judicial assistant.

Three days before the hearing, parties need to exchange all exhibits, and two days before the hearing parties must submit all proposed exhibits to the Clerk’s office. Exhibits must be searchable PDF’s, have an index, and include page numbers.

If a witness is appearing to testify, they need to be alone in a secure room with the doors closed (no word on windows 😉). They should have all exhibits available to them, and a strong WIFI signal because the loss of signal is not grounds for a continuance.

In DuPage, the process is less defined. It simply says that at the request of the attorneys they can proceed via Zoom with at least seven days’ notice. Otherwise, contested hearings will be decided without oral argument.

What Does It All Mean?

Kane County has laid out a lot of details about how agreed orders work and the option to use Zoom for hearings. I say ‘option’ because that’s exactly what it is. There is no requirement that these things are used, and because of the relatively high barrier to use, I expect that they will not be exercised much.

The agreed orders require that attorneys jump through a few hoops to get them approved. They require cover letters and attachments, which may not seem like a lot, but most agreed orders are self-explainable and the need for cover letters seems overboard. Many lawyers may not want to do all that extra work, and they may be reluctant to agree with one another on the language in the cover letter for the agreed order.

Further, the judges are not directly receiving the order, the Clerk is. I feel for the poor clerk that has to wade through dozens of agreed orders every day. I mean no disrespect to Kane County, but some of my cases were never continued during the shutdown. Now I’m expected to trust the Clerk to get my agreed order to the judge? I’m sure there will be problems.

Further, the requirements for the Zoom hearings in Kane are also high and unlikely to be used. I especially like how the attorneys are waiving their clients’ rights to appeal based on the telephonic hearing. It pairs nicely with the fact that a poor connection is not grounds for a continuance. That will make for some great appellate arguments.

As an aside, what happens if the judge has Zoom complications? The order says that connectivity issues are not grounds for continuance, but if it’s on the judge’s end that seems unreasonable.

The difficulties in the Kane procedures will make them less likely to be used, which doesn’t really solve any problems.

In DuPage, there are fewer requirements, but until June 5 there are no other options besides agreed orders and Zoom hearings. That means that attorneys will be forced to take advantage of the options. My guess is that we will see a lot of agreed orders and very few Zoom hearings.

In a lot of ways, the DuPage order makes more sense. Email the judge directly, makes sense. Coordinate with the judge for Zoom, makes sense. None of this nonsense about going through a general Clerk’s office email. Much cleaner and likely to be used.

It Doesn’t Solve the Real Problem

Hundreds of people go through the doors of the Kane County Courthouse and Judicial Center every day and thousands enter the DuPage County Courthouse. These procedures will cut down on very few of those people.

We are expecting an aging judiciary to manage Zoom meetings and electronic evidence. Many judges will refuse to handle cases this way or bungle the proceedings. These solutions are rife with issues.

And they still don’t address the issue of the people.

What would I do? I’m not saying that the courts don’t have other solutions. For all I know, there will be new orders this week addressing my concerns, but until then, here’s what I would do.

For starters, I would get rid of the 9 a.m. court call. Most courtrooms function by having everyone show up at 9 a.m. DuPage has been better than Kane about spreading the cases out a bit, but both counties have the bulk of their cases appear at 9 a.m. Governor Pritzker’s current order doesn’t allow for any gatherings, and Phase 3 only allows for gatherings of 10 people.

Why don’t we spread the cases out a bit? Have some appear at 8:30, some at 9, some at 9:30, etc. Suddenly a 40-case morning has only 10 cases in the courtroom at a time.

I also think we can take a few cases off the court docket. Some of these civil cases don’t need to be reporting to the judge every 60 days. Attorneys can motion a case up whenever they want. Now, I am concerned that some lawyers will lose out on billing and, worse still, some simply won’t do any work. But the court is still available to referee the matter. One party can easily motion the case up.

None of this addresses the pro se problem. My guess is that pro se people will not take advantage of any of these procedures and will end up in court like normal. I have no idea how to fix that, but something will need to be done. What if people show up without masks? Will they be turned away at the door? Denying someone justice because of a lack of PPE might not make a lot of sense.

We’ll have to see how it plays out.

May 11, 2020

(The image above was originally published by ABC News, but you can find it virtually everywhere.)

A common theme that we’ve been grappling with the last few days is what the plan for reopening with look like. Many people I’ve spoken to have suggested that the economy is like a light switch, it’s on or off, but I think it’s much more nuanced than that. And, in fact, we’ve gotten some guidance from the governor as to how he envisions the reopening to occur.

The Five-Stage Plan

Governor Pritzker announced his five-stage plan for reopening Illinois earlier this week, as well as a map breaking down the regions of Illinois.

Each phase is associated with a stage of the pandemic and the reopening efforts that will take place.

Phase 1 is (hopefully) behind us. It is characterized by rapid spread of infection and rising cases and deaths. During phase 1 we saw strict stay-at-home orders and closure of non-essential business.

Phase 2 occurs when we see a flattening of the infection rate. New cases and deaths will continue to increase, but at a slowing pace. During phase 2 non-essential stores can begin curbside pickup (though, in my experience, they were already doing it) and outdoor locations will start to open up. No gathering allowed yet. This is the phase we are currently in. This will continue until the end of May, at the earliest.

Phase 3 occurs when the rates of infection are declining. Gathering of 10 or fewer people will be allowed and certain businesses (manufacturing, offices, retail, barbershops, and salons) will be allowed to reopen. Face coverings will still be worn when in public.

Phase 4 will occur when the rate of infection continues to decline. Restaurants, schools, and child care will reopen. Travel will resume. Gathering of up to 50 people will be permitted, but masks will still be required.

Phase 5 occurs when we have a vaccine. Everything will go back to ‘normal’ at that time.

When will we get to Phase 3?

The short answer is that no one knows. The rates of infection are beginning to flatten, but they are not declining, and we don’t know when they will. This may be affected by the reopening we’re seeing in other regions of the country. If people in other areas reopen too early and cause a second spike, that can change what happens here in Illinois.

The plan can change, as well. We will be watching how Texas and Georgia are handling the reopening and judge whether we’re on the same track.

More rural parts of the state, specifically southern Illinois, may be able to reopen sooner than the more populous areas. It will be interesting to see how that is handled.

Phase 3 isn’t back to ‘normal’

Phase 3 is far from ‘normal’. No gatherings of more than 10 people and constant face masks is far from the normal we remember from a few months ago. This will greatly affect the locations allowed to reopen.

How does an office reopen with less than 10 people? How about a courtroom?

We will continue to see the impact of the pandemic for many months, I fear. There are also concerns about a resurgence of the virus come fall. This is, of course, speculation, but it’s based on what happened during the Spanish Flu. Doctors have been saying that until we have a vaccine, we aren’t done with this virus.

Frankly, I worry about the possibility of the virus mutating or whatever viruses do. We could be living in a world with a new vaccine each year, much like COVID’s less-deadly cousin the flu. I fear this new ‘normal’ is here to stay.