Returning to Normal?
Gary L Cooper
Sixth and Seventh Districts
It excites me to read that we can look forward to getting back to normal. It has been two long years since the COVID-19 pandemic changed our personal and professional lives. Many people have been sickened and hospitalized; more than 900,000 people have died in the United States since the start of the pandemic in early 2020. These are tragedies that none of us want to see repeated. We weathered the Alpha variant, the Delta variant and, when we thought we had put COVID in our rearview mirror late last year, we were forced to shut down again by the Omicron variant. Thankfully, Omicron cases rose suddenly and subsided nearly as dramatically.
I am beginning to feel confident that we can finally get back to normal. However, I am writing this column in March and it will not be published until May. Of concern to me is that I just read that the BA.2 Omicron variant has been detected in the United States and it is more transmissible than previous variants. I hope that I am not being too optimistic by allowing myself to think that we are going to be able to return to normal before we meet in Twin Falls, in person, for the Idaho State Bar Annual Meeting in July.
However, what we remember as “normal” will not be the “new normal” when we finally transition out of COVID and get back to normal. Our behavior was changed for two years and we will not go back to where we were in early 2020. We learned involuntarily that “flexible” works in the workplace. We do not have to be in the office to be successful lawyers. Some of us want to be in an office because that is where we learned to be lawyers, but being in the office does not have to be the new normal for everybody. We know now that we do not have to do everything in person. We have learned that remote hearings, depositions, and mediations can be quite successful. Use of remote technology will not disappear when the pandemic is behind us, nor should it.
I am not an advocate for using technology to replace in-person lawyering to the extent we were forced to do so during the dark months of the pandemic. There are just over 5,000 active lawyers in Idaho which means that in the area of law you practice you are highly likely to know most, if not all, the Idaho lawyers practicing in your area of expertise. It is also very likely that you will work with those lawyers in your area of expertise multiple times during your career. One of the things that makes it enjoyable to practice law in Idaho is the collegiality that we enjoy with each other.
The close professional relationships we enjoy with other Idaho lawyers require personal contact. Face-to-face meetings, hearings, negotiations, depositions, mediations, and other events are critical to maintain the level of professionalism that we all desire and expect. So, my hope is that we do not let the “new normal” sacrifice in-person lawyering just because we learned we could use technology during the pandemic.
As we return to normal, we should double down on finding ways to use technology to serve the thousands of Idaho citizens who are not able to afford lawyers. If you read about judicial reform and access to justice initiatives in Idaho, and elsewhere, you may be shocked about the number of court filings in our courts where some of the parties are unrepresented by lawyers. Idahoans regularly appear pro se in landlord/tenant litigation, consumer debt litigation, at protective order motion hearings, at infraction proceedings, on minor misdemeanor citations, and in child visitation/custody litigation. I believe that these cases amount to as much as 80% or more of court filings. The kind of litigation in which most of us are involved amounts to about 10% of the filings.
To me such statistics are staggering. Not because people do not use lawyers for these cases, but because the impression which significant numbers of Idahoans form about the judicial system are formed without the benefit of an advocate to help them navigate the challenges of being sued. I am not suggesting that we figure out ways to get all pro se litigants a lawyer because that may take too long.
What is necessary, in my opinion, is to figure out a better system of delivering justice for citizens involved in these kinds of cases and disputes so that those who are unrepresented can come to understand that the judicial system is fair and accessible for everyone. While politicians and lawyers, in general, have been judged harshly by public opinion for years, the judicial branch has, I believe, maintained a high degree of respect. Recently, I am afraid the judicial system has not fared as well.
You can draw your own conclusions as to why that is, but the more important point is that we lawyers need to make certain everyone, even the person with the smallest case, can access the judicial system and come away feeling that they received a fair shake. If we do not, we risk a majority of Idahoans losing respect for the judicial branch of government. Our fellow citizens who suffer bad experiences with the court system when they are compelled to defend themselves in the kinds of cases previously described will buy into the narrative that the judicial system is broken or only works for the wealthy. That is not the narrative that any of us wants popularized.
I think technology may provide ways to resolve this problem. The judicial system adjusted quickly to using platforms, like Zoom, to conduct difficult hearings and other litigation events remotely when the pandemic forced us to do so. I think most people know how to use the internet to shop. Those skills are sufficient to permit our judicial system and most people to use the internet and remote platforms to resolve consumer debt, landlord/tenant, and other common judicial system issues without going to the courthouse.
I certainly do not have the aptitude or skills to figure out how we can use technology to solve access to justice issues, but I think if we encourage it, as part of the new normal, there are those who have the skills to improve our system of delivering justice in these kinds of cases. As we return to normal, we have a great opportunity to insist that some of our access to justice problems be improved with technology. I believe it is vital to maintaining confidence in our judicial system. Personally, I hope we, as a profession, do not accept what we now have as adequate.
As we get back to normal, the Idaho State Bar staff and Bar Commissioners want to make sure that we are providing the right kind of services that are helpful to our members and the communities in which we practice. At the Annual Meeting in Twin Falls this year from July 20th – 22nd, some of the staff and commissioners will convene at least four focus groups: (1) lawyers who have practiced less than 15 years; (2) lawyers who have practiced more than 35 years; (3) women lawyers; and (4) lawyers practicing solo or in firms of less than four lawyers. We want to hear what you think we can do better to help you in your law practices and to serve the communities in which you practice. As we return to normal, we want to make sure the “new normal” includes the kind of assistance from your membership in the Idaho State Bar which will be helpful to you and which you can use.
If you are interested in participating in these focus groups, please email me at email@example.com and I will let you know when and where we will be meeting. I realize these focus groups do not include all member subgroups. Do not worry. We will be conducting more focus groups and town hall meetings in the coming months to give everybody a chance to weigh in. You are also welcome to email me at firstname.lastname@example.org with any suggestions.
Gary Cooper was raised in Idaho. He received an undergraduate degree and law degree from the University of Idaho. He has practiced in Pocatello since 1975. For the last 23 years he has practiced with his good friends Reed Larsen and Ron Kerl. He and his wife, Jane, have three children and five grandchildren.