Opening Statement. Weathering the Storms and Anticipating Post-Pandemic Changes

• Author: James A. Reeder Jr.
• Pages: 4-5

Opening Statement

Published in Litigation, Volume 47, Number 1, Fall 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 4

BY JAMES A. REEDER JR.

The author is a partner with Jones Day, Houston, and chair of the Section of Litigation.

Those of us along the Gulf Coast have hun-

kered down for natural disasters before.

Tornadoes are not unusual in Texas, and

hurricane season lasts more than three

months. We endured nearly three balmy

weeks without power after Hurricane Ike

hit Houston in 2008. (Full disclosure: In

what my family thought was suspicious, I

spent 10 days of that period in the air-con-

ditioned comfort of the Hotel DuPont—try-

ing a lawsuit in Delaware Chancery Court.)

The flooding associated with Hurricane

Harvey in 2017 affected more than 13 million

people and destroyed or damaged more than

135,000 homes. We sat stuck at home for six

days glued to the television, watching the

radar, waiting for a sign that things would

be returning to normal. Some businesses in

Houston, including grocery stores and restau-

rants, were closed for weeks. Harvey ended

up costing $125 billion in physical damage;

the unseen residual damage was incalculable.

Similarly, in New Orleans, the physical

cleanup and the disruption to normal activ-

ity for many post-Katrina has lasted months

and years. Whether those experiences or our

typical Texas-can-handle-anything attitude

is to blame, the state of Texas seemed slow

coming out of the gate in responding to the

COVID-19 pandemic. Even those of us who

recognized the seriousness of the coronavi-

rus were somehow lulled by our own expe-

rience with cataclysm into thinking this

won’t last. It turns out that although our

experience with natural disasters was a

poor gauge of the predicted duration of this

latest crisis, it has been a tremendous foun-

dation for maintaining our mental health,

taking care of each other, and taking care

of our clients while keeping the crisis in

perspective and our spirits buoyed as we

once again work from home.

Altering the Face-to-Face Lawsuit

Now more than four months in, working

remotely seems to be a piece of cake for

many of us. There is, however, an increas-

ing sense that this pandemic is forcing us

to address issues that many of us thought

we might be able to push off onto the next

generation. During the last five years, for

many, the rise of social media has dimin-

ished the need or desire for face-to-face

socialization. In much the same vein, the

rise of COVID-19 may be forever changing

the face-to-face economy and, along with

it, the face-to-face lawsuit.

During the next several months, out of

necessity, we will be struggling with formu-

lating improvements to a legal system that

has functioned perfectly well for hundreds

of years and is, therefore, understandably

slow to change. I think about the seemingly

interminable efforts to craft rules to allow

for service by fax or email, or the fact that

there are court systems that have just now

started accommodating electronic filing.

The need for innovation and adaptation

that the COVID-19 crisis is thrusting upon

us is more urgent than our profession his-

torically has been suited to manage.

Some are looking at the aftermath of this

health emergency as a chance to radically

change the legal system; not just grafting

technology onto old ways of doing things

(automation), but using technology to help

do things that we have never been able to

do before (transformation). True transfor-

mation of the legal system by distinguishing

courts as a “service” from courts as a “place,”

for instance, may be in our future, but for

now, we need to learn to do the old things

in a new way. It is time to face the future.

For that reason, the other side of the

COVID-19 pandemic presents an opportu-

nity to shape the future of the legal profes-

sion and the process for dispute resolution

in a modified face-to-face economy.

A Second, Enduring Pandemic

Reemerges

The murder of George Floyd at the hands

of the Minneapolis police has raised the col-

lective consciousness of a second pandemic,

the outbreak of which began centuries be-

fore COVID-19: racial inequity and social

injustice. As a gay man who has actively

participated in the gay rights movement,

WEATHERING THE

STOR MS AND

ANTICIPATING POST-

PANDEMIC CHANGES