The state of the Nashville legal world, 8 months Into COVID

Today marks the 8 month mark of when, basically, people started taking COVID seriously.

On March 10, 2020, I had travelled to Louisville and was staying at the gorgeous and totally empty Omni Hotel, to interview for the open Louisville Bankruptcy Judgeship. That was on a Tuesday, and, on Saturday, my family was scheduled to depart for a spring break Disney Cruise.

(Spoiler-alert: Neither the job nor the cruise happened.)

My view entering the Louisville Omni.

While sitting in the Omni’s gorgeous and empty food hall, I read an article in the local paper about how Washington DC’s first known COVID patient had stayed at the Omni the week before. I realized the magnitude quickly (as well as why I was the only guest at the hotel).

In fact, on the drive back to Nashville, I coordinated my wife buying $400 of frozen pizzas and toilet paper, and I pondered stopping at Gander Mountain in Bowling Green to buy pre-apocalypse weapons and ammo.

(Spoiler-alert: The pizzas and toilet paper did happen, but the Anthony armory remains stocked only with hand-to-hand combat accessories.)

The legal world largely shut down the following week, with some some firms being more proactive than others. (Ask me about one local law firm that threw a staff and attorney “Corona Vacation Party” the next week.)

But, eight months in, here are a few random thoughts about the impact of COVID-19 on the Nashville legal world.

Downtown is Dead. Large law firms that could go remote have gone remote, and, surprisingly, they’ve stayed that way. Law firms have a reputation for “work at all costs,” but I’ve been surprised that most large law firms (basically, any of them large enough to have a HR department) have kept workers away from their offices.

This is based only on my informal calls with opposing counsel, but most of the “big-name” Nashville firms are still remote and plan to be for the foreseeable future. And, oh man, are they mad about those rent checks for all the empty offices.

Is this the future of law? It’s hard to say whether this trend is going to continue after COVID, but, from what I hear, people like remote work and appear to be thriving, without much impact on quality of legal work. Nevertheless, I’m hearing a few common obstacles for this trend.

How old are the firm decision makers? I’ve noticed firms whose decision makers are–I say this in a nice way–“of a prior generation” are tending to have workers back in the office sooner. Some of this comes from the fear that the physical office (generally downtown) is the only place that workers can be trusted to work. This also comes from a reluctance to embrace / understand technology from the top (who knew what a VPN was 8 months ago, right?). If an older partner refuses to work from home, it probably means that an assistant or two have to come in as well.

How long is the lease? Many law firms are locked into “Nashville rate” leases on old-fashioned commercial space, with over-sized offices and large storage rooms with closed files. It’s not from business necessity that these firms stay in their current space; it’s a matter of contract law. If the virus recedes, how long will these firms allow workers to stay remote, while the prime commercial space they’re paying for each month sits half-empty?

Local courts have done a great job of embracing technology. The first week of April, I had a rural Judge conduct a hearing via telephone, which was impressive to see the outlying counties acknowledging the risks of in-person hearings. (Note: This entailed me calling the Clerk’s office, them giving me the Judge’s cell phone number, and then me calling the Judge to argue my uncontested motion while he took his morning walk.)

And, since then, I’ve now had dozens of remote and video-conference hearings, with no real technical issues. I’ve seen full blown trials conducted via Zoom, as well as participated in injunction hearings taking place in remote counties (saving my clients thousands in legal fees).

A few weeks ago, I watched applicants for the vacant Tennessee Criminal Court of Appeals spot get interviewed live, via Youtube.

It’s been a positive move for the court system, and I’m hoping that these advances remain in place long after we cure the virus. And why can’t it continue? Instead of a 45 minute car ride to downtown Nashville, and 20 minutes to park, and then waiting in Court for 1.75 hours for my case to be called…why can’t we just have the matter que’ed up on Zoom for our 10 minute argument?

Inconsistency in court technology application has been a big problem. The biggest issue is that our state courts use technology so inconsistently. Some courts allow for remote e-filing. Some don’t at all. Other courts allow for some pleadings to be filed remotely, but not for the same filings that other courts across the hall allow.

That’s because the various e-filing systems are all ad hoc systems, ordered and implemented by the individual county. Not the State of Tennessee.

Davidson County Chancery has a great e-filing system, but you can’t file executions or garnishments on it–you have to do that in-person. So, for those pleadings, you have to file it in person. (Note: I’m a lawyer who runs Creditor Rights 101, so you can imagine my bias.)

A state-wide system would promote uniformity across all the courts, and, possibly, would offset some of the technological and expense obstacles that are preventing the smaller clerk’s offices from adopting these advances.

Courts need to move away from half-measure solutions. I totally understand uncertainty in the face of this historically unprecedented pandemic.

But, 8 months in, I haven’t yet seen the more comprehensive changes to court dockets and settings that I had expected. Instead, it’s been a little bit here, gauge the reaction, and then a little bit less in response. In the end, the court system seems to be only making minor tweaks to the “usual way of doing things,” rather than embracing innovative models that could result in future improvements.

People and lawyers are still forced to appear in person in many courts, but, in 2020, we’re just making the dockets smaller. Some folks dislike this…

What’s next? All of this is impossible to predict, especially since the news is now talking about a “Dark Winter.” Sure, that’s alarmist, but also, yikes, things don’t appear to be moving as quick as we’d like.

Law firms are traditionally the slowest segment of the professional world to embrace change and innovation. A typical law firm partner isn’t one to embrace “new ways” of doing things. In fact, maybe the lawyers coming back downtown every day will be our collective signal that the pandemic has passed. A canary in the coal mine, but for a fatal respiratory disease.

But, lawyers are only part of the legal system. It’s my hope that clients drive law firms to change by leading by example. Clients can encourage law firms to embrace new technologies and non-traditional work models. Lawyers are stubborn and reluctant to change, but, if there’s one group a firm will listen to, it’s their clients.

Author: David

I am a creditors rights and commercial litigation attorney with Harris Shelton in Nashville, Tennessee.

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