Robert Tomaso
Office Managing Partner, Husch Blackwell LLP
BAMSL President, 2021-22

Originally published in the June 2021 issue of the St. Louis Lawyer magazine.  Download PDF.

As this column is being written, we have been dealing with the COVID-19 pandemic for more than 14 months. Its impact on the legal profession has been profound.

First, most lawyers — with extraordinary help from IT professionals — have learned to work remotely (meaning primarily from home). Shockingly, because of technology, many lawyers have found working remotely to be just as productive as working in a law office. Still, stories abound about lawyers “working from home” in vacation properties. One administrative assistant confided in me that her “cube” was now a table outside near her family swimming pool.

Second, many lawyers who would have never dreamed of taking depositions by video have become adept at the practice. Present company excluded, of course. When John Simon approached me and several other officeholders of BAMSL a few weeks into the pandemic asking for support on a request for courts to rule that parties would not need permission to take video depositions, I was surprised John and others thought it could be done. I was also wrong.

The burden has shifted. By and large, in most courts today, rather than asking permission to take a deposition virtually, parties need a reasonable excuse not to give or take a deposition remotely by video. Similarly, even a dinosaur like the author of this article has participated in several virtual (and seamless) mediations since the pandemic hit.

To be sure, not all aspects of the practice of law have been running smoothly during the pandemic. Due to the possibility of transmission of the virus through close contact, many courts all but closed their doors to live civil jury trials. One St. Louis County Judge told me just a few weeks ago that he had recently concluded his first criminal jury trial since the pandemic. It is likely, however, that the civil trial docket will remain clogged for a while after things finally open up.

As one very good defense trial lawyer told me recently, “The trial setting is the coin of the realm” for getting cases to settle. Without a trial setting looming over them, civil defendants have had little incentive to move cases forward during the pandemic. This slow crawl is likely even more acute in medical malpractice cases, where pre-judgment interest is not recoverable.

There have been more subtle consequences to COVID, such as a significant cutback in business travel. Although I have maintained a rigorous travel schedule, lawyers and clients seem content to communicate by video. If and only if you and your clients are comfortable, and you want to differentiate yourself from your competitors, my advice is to try some socially distant live meetings.

Perhaps a profound but subtle consequence to COVID, given the comfort of working remotely, will be the virus’s long-term impact on office space. With fewer lawyers coming into the office, many law firms are planning on leasing less physical real estate, or at least re-designing their existing office space to use it more efficiently. Moreover, the days of territorial lawyers demanding the biggest or most plush offices may be waning. If you spend less time in your office, should it really matter if you do not occupy a 30-by-30-foot palace suite? Some creative law firms are having lawyers share offices or using a hoteling concept where a lawyer finds an office upon arrival for the day.

While the loss life from the virus has been tragic, and the disruptions have been challenging, one should at least take comfort in the fact that the virus hit when it did. At least in 2020 and 2021, we have been able to manage the disruptions to our lives and law practices. Imagine if this virus had hit us in say 1998, prior to the technological advances we enjoy today? How would we have coped if COVID-19 had been COVID-98?

Other challenges have been difficult to measure and equally difficult to overcome. Is your law firm’s culture the same after 14 months of COVID? If not, how will you get it back?

Finally, COVID has been a great challenge for lawyer well-being. Isolation. Even more stress. Many practices clearly hurting. We hope you have taken advantage of the many offerings of BAMSL’s Lawyer Well-Being Committee, chaired by Amy Rebecca Johnson.