Sidebar. Change-Some Things Don't

• Author: Kenneth P. Nolan
• Pages: 62-63

Published in Litigation, Volume 48, Number 2, Winter 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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Sidebar

KENNETH P. NOLAN

The author is the author of A Streetwise Guide to Litigation (ABA 2013), and counsel to Speiser Krause,

Rye Brook, New York.

We forget, of course. I live in a Brooklyn

neighborhood, Bay Ridge, which was

once known as Yellow Hook (another

part of Brooklyn is Red Hook). Around

the 1850s, the name was changed because

the residents—real estate developers, no

doubt—didn’t want the area associated

with yellow fever, a virulent disease that

devastated the 18th and 19th centuries.

Every year well into the 20th century,

cholera, tuberculosis, polio, smallpox, yel-

low fever, and the like stole thousands of

lives. Through the brilliance of virologists

and medical researchers, these scourges

mostly disappeared in post–World War

II America.

Just when we thought we were inde

-

structible, COVID crashed the party, kill-

ing millions, upending lives, and expos-

ing vulnerability. We hid, afraid to hug

those we love, afraid to shop, afraid to go

to work. We piled on masks, soaked our

hands with sterilizer, and spent every

waking hour staring into a screen. Fear

and anxiety consumed us as we whis-

pered the names of relatives and friends

who were buried without ceremony or cel-

ebration. Sadly, we realized that a virus

can rob us of livelihood and laughter, that

even in our secluded suburbs or sprawl-

ing summer homes, we’re not safer than

those living in cold-water tenements 150

years ago.

Even after vaccination, fist bumps

replaced kisses, crowds were shunned,

and we reached for a mask whenever we

stepped into a deli. COVID has changed

everything; the world will never be the

same, we’re relentlessly told. Especially

in law. No longer do we have to go to the

office, travel to counsel clients, sit in a

sterile conference room for a deposition,

appear in court. Mediations, arbitrations,

even trials will be virtual. The way we

practiced will disappear as surely as the

carbon paper used when I was first ad-

mitted. The days of discussing strategy

with colleagues while you scarfed down

a pepperoni slice are no more. Instead,

you’ll mutter into your computer as you

pick at a wilted salad.

Yes, how we practice has changed, but

our practice has not. Law is based on sim-

ple, but timeless abilities: to communicate

clearly; to convince with expertise and

common sense; to solve difficult, intricate

problems; to advise and reassure. Cicero’s

“docere, delectore, et movere”—to teach,

to delight, and to move—is as relevant as

ever. We must prove our thesis while cap-

tivating and convincing our audience, be

it client, adversary, judge, or jury.

If we analyze our worth, we must ac-

knowledge that the qualities that make

us valuable to our clients, to society, have

not fundamentally altered even as we sit

squirming on the 10th Zoom of the day.

Indeed, this nasty pandemic, with its iso-

lation and reliance on technology, has, un-

doubtedly, made our job more nuanced,

more challenging.

Life always changes, yet COVID’s im-

pact was sudden and dramatic, altering

where you live and work, how you mourn

and celebrate, but not whether you do so.

So it is with law, where our ability to advo-

cate and advise remains essential, although

how we do so is different. This, too, is not

new. When Ted Lasso asks the hotel clerk

if they have a fax machine, a woman says,

“A fax machine, hey? Are you sending some-

thing to the year 1997?” Those weaned on

avocado toast have probably never seen

telex machines, electric typewriters, and

crowded courthouse phone booths. Today,

you can argue a motion from your ski house

in Whitefish, Montana, but you still must

use words—written and oral—to persuade.

And although COVID has changed much,

the soul of our profession has not.

Communication. The ability to speak

and write clearly and credibly permeates

every aspect of our craft. Words convince

clients to hire us; and their skillful use

can guide and instruct, win motions, and

sway juries. More importantly, words

can demand justice for the innocent, the

helpless, the uneducated.

CHANGE—

SOME THINGS DON’T