The Next New Normal in Law, Dispute Resolution, and Legal Education

A recent post anticipates that as we go through the current crisis, we will develop a “crisis new normal” and, after we recover from the crisis, a “normal new normal” (NNN).  At this point, governments, institutions, and individuals are still developing new routines as we wait out the crisis by doing things like sheltering in place, communicating electronically, working from home, etc.  At some point, we will shift to an NNN.

Presumably, as restrictions are relaxed following the crisis, people would continue some (but not all) of their new routines.  If so, the decisions and routines that people develop during the crisis new normal period may have long-lasting effects during the NNN period.  In addition, institutions and individuals may initiate broader changes during this period of disruption and recovery while norms and routines are in flux.

To a significant extent, the future will be contingent on decisions we make individually and collectively.

The process of developing NNNs will have varying trajectories in different domains of life.  The prior post sketched out some possibilities of NNNs of social conflict, work, and higher education in the US.

This post focuses on potential changes in legal and dispute resolution practice, court procedures, and legal education.  It concludes by suggesting that people advocating change should take advantage of the disruption to lay the groundwork for their desired NNN.

During the rest of this semester, faculty will finish the courses they had to re-design on the fly.  During the summer, they will have time to consider what changes they want to make in their own teaching and what to advocate in their schools’ program and legal practice.  Our organizations can take advantage of this opportunity to develop and advocate for important new initiatives.

Legal and Dispute Resolution Practice

Lawyer-client relationships are the foundation of legal practice.  Presumably, during the crisis, most lawyers are working from home and not meeting with clients in person.  Instead, they probably communicate through a combination of video, phone, email, and texts.  This loses some benefit of in-person interactions, though video provides a reasonable substitute, at least during the crisis.  This process is more efficient for clients, who don’t need to travel to lawyers’ offices and can manage their time better.  How much will lawyers use video for conversations with clients during the NNN period?

Presumably, clients will increasingly participate in dispute resolution and legal procedures by video during the crisis.  Much negotiation is conducted solely between lawyers and there is potential for clients to participate more because of the convenience of video.  What changes will there be in lawyer-client interactions during and after the crisis?

Certainly, it will be easier for clients to participate in mediation and arbitration proceedings by video as they learn how to do so.  Because no one will have to travel, there will be less need to complete proceedings all at once.  Before the crisis, I suggested that mediators offer “planned early two-stage mediation” (PETSM) in many civil cases, as described in this post and the LIRA book.  Sympathetic friends liked the idea but said it wouldn’t fly because of a strong norm of doing mediations all at once.

In the new normal, not only might PETSM become normalized, but so might PEMSM – planned early multi-stage mediation.  With video, lawyers and clients would not only save travel time going to mediations, but they could avoid all the dead-time waiting while mediators caucus with the other side.  It should be possible to schedule several steps in a mediation that might unfold over a specified period, such as a week.

This might also address the recurring problem of lack of engagement of utlimate decision-makers in large organizations.  People with authority to settle, such as high-level executives, usually aren’t willing to invest the time to travel to a mediation and endure a lengthy process in which their input isn’t needed most of the time.  In the NNN, ultimate decision-makers could be engaged by video for the limited, critical times when their input is necessary.

By the same token, arbitration hearings could be spread out over a period of time, with examinations of witnesses at scheduled times.

Will practitioners adopt procedures like these during the crisis?  To what extent, if any, would these procedures survive after the crisis?

Technology already is changing legal practice and this trend seems likely to continue and accelerate.  Discovery increasingly involves electronic documents and is increasingly automated.

Lawyers may increasingly use sophisticated legal tools including legal analytics.  Use of legal analytics and artificial intelligence in legal matters probably is concentrated in some larger firms, but presumably it will become more economical and useful to a broader group of lawyers.  (For a description of various technological tools for lawyers, see Chapter 6 of the LIRA book.)

Elayne Greenberg and Noam Ebner argue that lawyers will increasingly need skills using technology and online communication as their interactions with courts, clients, and others become technologically mediated.  Lisa Amsler argues that lawyers will increasingly need interpersonal and process skills as technological tools perform legal tasks more effectively and efficiently.

Courts

Courts have been developing online dispute resolution (ODR) systems for a while and the crisis should greatly accelerate adoption of ODR.  Once they develop ODR systems, presumably there will be no going back after the crisis.

During the crisis, some court proceedings are conducted by video as described here, here, and here.  (Rushing into the 20th Century, the US Supreme Court now will hear arguments by phone.)  After the crisis ends, how much will courts continue to use video instead of live proceedings?

The US has a much higher incarceration rate than other large countries, which has been the subject of much criticism.  Before the crisis, there were initiatives to release defendants awaiting trial for non-violent offenses and, since the crisis began, people have urgently urged release of such defendants.  The Federal Bureau of Prisons is arranging for early release from prison for inmates deemed to be low risks to society.  Will the crisis lead to policies dramatically decreasing the incarceration rate after the crisis?

Legal Education

Law schools have abruptly shifted to online education during the crisis, requiring retooling of courses in the middle of the semester.

How much will law schools change as a result of the crisis?  My guess is not much.  The structure of the legal education system is deeply entrenched, and it has resisted and coopted reform efforts for decades.  There are numerous factors perpetuating the system including the annual US News ranking tournament, high priority for doctrinal instruction, strong faculty specialization, and tenure, among others.

Perhaps the most likely change would be the loosening of restrictions on online education.  The ABA standards mandate that law schools require students to complete at least 83 credits, including at least 64 credits of residential instruction.  After every course has been offered online during the crisis and faculty learn to teach online, will the ABA modify this standard during the NNN?

Considering law schools’ contraction since the Great Recession, offering online courses and degrees could expand the market, which might make it appealing for financially-strapped law schools to pressure the ABA to change its standards.  If the ABA was really forward-looking, it might require that some courses are offered online, both to prepare students for their online future and to gear up in case we need to teach online again.  Don’t hold your breath.

Law school classes traditionally have used the Socratic method, which doesn’t work as well in online instruction.  Many faculty have supplemented or substituted other teaching methods over the years.  This trend may continue and increase.  Indeed, faculty may choose to use online learning management systems, and there may be a market for systems designed especially for law schools.

Many law schools have adopted pass-fail grading for this semester.  I assume that law schools will resume traditional grading as soon as they can.  The American system of legal education is a massive social sorting machine, and there will be great pressures to maintain that system.  GPAs, calculated to the umpteenth decimal place and relying on strict curves, are the tools that top law firms and courts use to “skim off the cream” of the law student population.  That hierarchical structure of the legal profession surely will survive this crisis, and presumably high-powered lawyers and judges will continue to rely on grades to select students they perceive to be the best.

From time immemorial, there have been calls to make the curriculum prepare students more for legal practice.  These proposals – from academics, practitioners, and blue-ribbon commissions – have largely been ignored.  The ABA standards require students to take at least six credits of experiential instruction, and some schools struggle to arrange for students to comply with this requirement.  It seems unlikely that this would change much in the new normal.

Although law schools generally may not increase instruction in legal practice, some may adjust their curricula to deal with changes in practice.  For example, this may involve changes in existing courses and perhaps addition of electives about legal practice technologies or online dispute resolution.

Opportunities for Leadership and Progress

This post speculates about possible changes in legal and dispute resolution practice, court procedures, and legal education after the crisis subsides.  Of course, it’s impossible to know what actually will happen during the crisis and afterward.  And this post doesn’t identify all possible changes.  But it identifies some issues that practitioners, academics, and policy advocates should consider in the near term because some changes made during the crisis may become institutionalized as part of the NNN.

The crisis also presents the opportunity to take advantage of the disruption of normal routines by changing or discarding old routines that people accepted simply because they were the old normal.

The next few months may be critical in initiating changes while things still are in flux.

During the rest of this semester, faculty will scramble to finish their re-designed courses.  During the summer, they (and others in our field) will have time to consider what changes they want to make in their own teaching and what to advocate in their schools’ program and legal practice

The Theory-of-Change book presents useful ideas about possible new approaches. The contributors’ suggestions are synthesized into the following recommendations at pp. 4-12:

  • develop clearer common language of dispute resolution
  • redefine what we do and who we are
  • integrate technology into all our work
  • develop best practice standards
  • redesign teaching and training curricula
  • develop and implement a research agenda
  • develop a searchable dispute resolution bibliographic database
  • engage the major issues of our times with realistic plans and expectations
  • attract “all hands on deck”
  • unbundle and prioritize your life

I want to focus on several things that law faculty might focus on during the summer and next academic year.  The summer may present particular opportunities because many faculty will have more time due to cancelled travel plans.  And faculty will be able to collaborate more easily, having become more skilled in video communication.

Dispute resolution faculty can work on redefining the field.  This was the focus of many contributors in the book, and it is an important intellectual task that faculty are particularly well-suited to perform and lead.

This also would be a good time to review and revise curricula considering ideas suggested in the Theory-of-Change book.

In courses next year, faculty can take advantage of Stone Soup assignments to learn – and teach students – about what is actually happening in practice in the wake of the crisis.  The ease of video communication will make it easier for students to interview practitioners, who might especially welcome the opportunity to reflect on their experiences and the changes in their practices.  Faculty may lead discussions with their classes about questions that they want to learn about so that students would use similar interview questions and develop more confident understandings about what is happening.  Students could promise to have follow-up calls with their interview subjects to report on what the class learned collectively from their interviews.

The Law Schools Committee of the ABA Section of Dispute Resolution and/or the ADR Section of the AALS might focus on issues like these over the summer.

In the meantime, I hope that you are all coping as well as possible during this crisis.

Another post discusses communication, privacy, and cooperation in the new normal.

 

* Thanks to Noam Ebner for his suggestions about this post.

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