Law Practice Management Tips and Tricks

Appellate Decisions

Local Practice – New Normal

by Larry Zimmerman

Managing a legal practice during the pandemic involves three broad categories of practice management worries (so far): 1. Personal Practice Preparedness – This series of issues required lawyers to react quickly to ensure firm survival. How do we protect our clients, our staff, and ourselves while continuing critical representation and meeting payroll and expenses? What remote tools and strategies do we have on hand, and what must we obtain, install and learn? 2. Supreme Court Response – The Kansas Supreme Court has been busy rolling out 29 emergency orders tallying up to nearly 100 pages, changing everything from statutes of limitation to jury trials to courthouse and remote access. This frenzied rulemaking, while necessary, has often confused clients, judges and lawyers and has given just about every Kansan something to worry about. 3. Local Rules and Application – Your firm is running (in some capacity) and clients’ needs are no longer confined to quarantine. Figuring out how 107 courts in 31 judicial districts are going to react to the pandemic and the Supreme Court’s rules is the challenge that cannot be delayed any longer.

The Good

The best among the district courts recognized the disruption under way and worked immediately to reopen in some capacity. For my money, none performed better than Johnson County.

There is an old proverb that counsels, “Dig the well before you’re thirsty.” Johnson County had done exactly that by exploring video conferencing access for litigants almost a decade ago. I first kicked the tires on a virtual hearing using the BlueJeans app with Judge Vano back in 2014, and it was remarkably easy to deploy and use. That advance legwork allowed Johnson County to “reopen” for video-conference hearings in April.

Johnson County’s quick response to the pandemic was also aided by an early realization that the pandemic was likely to be a long-term issue. Decision-makers responded from the beginning as if they would need to develop processes, forms, and technology that would become a new normal. By contrast, several judges, clerks and court administrators in more flat-footed districts adopted a “wait and see” approach, admitting they thought the crisis would be short-lived. Those districts squandered valuable time, and many are still struggling to reopen fully to the public.

Finally, Johnson County appears to have involved the public early in its plans to reopen back in April. As the district

developed plans, procedures and forms, it shared them with the bar and invited comments and concerns. It was reactive to feedback given about its missteps and made changes. It continues to do so months into reopening as on-going rules from the Supreme Court and executive orders from the governor continue to alter the landscape. Johnson County’s transparency with and responsiveness to its constituents and the public are commendable and vital to its successes in preparing for and responding to the pandemic.

The Runners Up

Once it became clear that the pandemic was not a twoweek or even a two-month crisis, many districts worked hard to resume court operations with video conferencing. They worked within the limits of free Zoom accounts and later tapped into licensing made available by a grant and got their feet wet with a few hearings before opening for something resembling business as usual. The public response has been generally positive. Litigants and lawyers alike appreciate both the reduced potential exposure to the virus and the ease of appearing in court. Accommodations for phone appearance in Zoom hearings has helped ensure that even those without the latest technology can appear. In other words, the virus has probably done more to prompt access to justice in a few months than several years of committee meetings and reports.

One hiccup with the video conferencing hearings relates to notices and instructions. The lack of uniformity is problematic. Though each county has landed on the same basic process, and all but Johnson County use Zoom, the instruction sheets and notices lawyers must send to litigants vary, with courts often wedded to their own forms. Prompt adoption of a standard notice and instruction set would be welcomed.

The Not-So-Hot

The most common, immediate problem presented to lawyers is the varied interpretations of the Supreme Court’s rules regarding operations during the pandemic. Continuing issues related to interpretation of suspensions of time deadlines are reported by lawyers throughout the state.

One court reactivated its dismissal dockets in contravention of Supreme Court orders and then reacted to motions to suspend dismissal by saying hearing such motions was not an essential service. Another court notified litigants it was resuming hearings that had been postponed early in the pandemic response but then decided it would not allow any next actions from the hearings it set pursuant to time suspension rules. Some courts are adopting motion processes (with response deadlines) to exempt a matter from deadlines. Others are authorizing discovery but suspending deadlines to reply despite retaining pretrial and trial dates. The picking and choosing what is suspended and what is exempt leaves lawyers confused and litigants livid.

Ultimately, the “worst of the worst” are those courts which have focused on limiting access to the courts in the hopes the pandemic will end soon and pre-pandemic normalcy will return. Filing limits and hearing limits allow them to appear open while denying genuine access. That position will not last and broader adoption of lessons learned throughout the state so far will ready us for future crises and increase access to justice. n

About the Author

Larry N. Zimmerman is a partner at Zimmerman & Zimmerman P.A. in Topeka and former adjunct professor, teaching law and technology at Washburn University School of Law. He is one of the founding members of the KBA Law Practice Management Committee.