Virtual Litigation: A Means for Increasing Diversity, Access to Justice and Attorney Well-Being

Issue July/August 2022 July 2022 By Peter Chandler
Young Lawyers Division Section Review
Article Picture
Peter Chandler

Stating the obvious: Attorneys, particularly younger attorneys, prefer virtual legal practice for routine matters. The legal profession, for far too long, has been slow and recalcitrant to adopt beneficial technology. I am young enough to remember being taught the (then) “benefits” of Word Perfect — a once-upon-a-time competitor with Microsoft Word, except not compatible, like Word, with every other computer in the country. In fact, at least in New York, despite Microsoft Word being a ubiquitous, built-in computer program, Word Perfect was the legal document application for quite some time. 

For whatever reason, the legal industry generally lags behind other industries by what often seems like decades. A perfect example of this is e-filing. Back in 1986 (i.e., 36 years ago), even the IRS, not exactly known for efficiency, was test piloting the e-filing of tax returns. Yet, e-filing of legal documents remains a sporadic occurrence throughout the country, despite its obvious benefits. In every other industry, slow adoption of relevant, time-saving and cost-effective technology results in extinction.

Much is said about the systemic issues facing the legal industry, yet almost nothing is said about how utilizing technology in litigation can assist in diversifying our legal industry, increasing access to justice and boosting attorney well-being. At the outset, the use of technology makes legal practice more cost-efficient, which opens justice up to a broader pool of people. As technology advances, the cost of litigation generally trends downward, and the lifespan of the average case shortens. The end result is quicker and more affordable justice, a broader consumer base and an increased awareness of our profession.

Use of technology also greatly eases the burden of participation. Any attorney faced with mobility issues has myriad challenges in today’s practice. Just think about the oldest courtroom you have been in — not exactly a user-friendly place. Not long ago, I remember being in a Brooklyn courtroom, watching an attorney in a wheelchair forced to shout, from the hallway, because he physically could not get inside the courtroom for a simple compliance conference. This is appalling and beneath the dignity of the legal profession. There is a simple solution: videoconferencing.

Nor is this something that impacts just attorneys with disabilities. Many plaintiffs have experienced significant, mobility-impairing injuries. Yet, these same individuals will get dragged into in-person depositions. There, in a foreign location, they sit in an uncomfortable chair, reliving a life-altering trauma, as they field question, after question, after question for hours on end. All so the defense attorney can “get a feel for who they are as a person.” This has become an untenable justification. If the pandemic has taught us anything, it has been how to “get a feel” for someone virtually. Again, a solution squawks at our profession: videoconferencing.

In line with driving costs down and easing the burden of participation, the use of technology keeps at the forefront the customer experience. After all, attorneys, at bottom, represent and primarily deal with actual people. The general populace does not lawyer for a living. As such, all litigation that they must personally attend to is a disruption to, and not a part of, their daily lives. It takes them away from their work, their families and friends, or their medical treatment. 

Thus, when anyone gets noticed or subpoenaed for an in-person deposition, this imposes unwanted planning upon them: work must be taken off, children must be accounted for, transportation must be obtained, and on and on. All of these disruptions, it goes without saying, also cost money (e.g., lost income, child care, travel, etc.). And, frequently, the individuals who end up being forced to attend in-person events need that money for other things. This is even worse if the individual does not live near the relevant attorney-picked location, which is often the case. Somehow this has been allowed to be the norm, despite the legal industry’s apparent drive for diversity, inclusion and increased participation. A glaringly obvious solution can ease this burden: videoconferencing.

Our failure to maximize the use of pertinent technology, particularly for routine matters, also results in a great disservice to attorney well-being. Videoconferencing frees up attorneys, who would otherwise be forced to travel or sit silently in a courtroom waiting to be called, to do more essential and valuable legal work. Non-party witness depositions and routine court appearances should be done via videoconferencing. The idea that attorneys are regularly required to waste several waking hours — the monetary burden of which either gets shifted to the client in the form of increased legal fees or eaten as a loss by the practitioner — attending required, momentary and often inconsequential events is a market inefficiency that would not be tolerated in any other private industry. 

And that is why institutional clients have, increasingly, begun to slash attorney travel time. This results in dead time for attorneys, rendering their work unprofitable and essentially free. Attorneys (at least the ones billing by the hour) must then expend even more time at the office — away from their family and friends and other pursuits — to make up for an easily avoidable non-billable event, just to meet their annual billing quota. This is a perfect example of a headache that drives individuals away from or out of the legal profession, which results in less overall diversity, diminished access to justice, and discontent within the profession.

If the legal industry wants to have a frank discussion about diversifying its ranks, giving all individuals equal access to the legal system and improving attorney well-being, it needs to take a cold hard look at the systemic issues that make participation painful for practitioners, its consumer base and the public writ large. As Massachusetts continues to open up, I hope, possibly naively, that more virtual work will be adopted by practicing attorneys for the sake of our profession’s future and the justice seekers we represent. 

Peter Chandler is a personal injury attorney at Sheff Law in Boston. He currently serves on the Massachusetts Bar Association’s Young Lawyers Division Board, where he is co-chair of the Technology Committee. His practice is focused on catastrophic motor vehicle collisions, product liability, premises liability, construction site accidents and wrongful death.