3 lawyers open up about struggling to cross-examine people online, kids interrupting hearings, and clients postponing business in a year of working from home

3 lawyers

One day during a trial held via Zoom, Elaine Banton, an employment and discrimination barrister in London, heard the sound of her son’s online violin lesson in their home. The judge stopped the proceedings to ask, "Is that the cello?"

"I had to run in the middle of the trial, scoop him up, and move him to another corner of the house," Banton said.

During lockdown, Banton also had to teach her other young son how to make his own lunch: "I didn’t have time for it," she said. "I was working day and night."

In addition to the common stresses of working from home, lawyers have faced unique challenges when working online during the COVID-19 pandemic. Courtrooms and attorney offices are natural venues for sensitive hearings, depositions, and contact with clients.

Three lawyers set out how a year of working from home tested them professionally and psychologically.

Many trials, multiparty talks, and negotiations have now gone online, changing the dynamic of lawyer-client communications.

"Pre-pandemic, your client sits behind you. They write their notes and pass it to you. We haven’t been able to do that," Banton said.

She now uses a WhatsApp group for client communications. "If I were cross-examining someone, they would give me instructions or ask a question on the phone.

"So you have to look at the screen, look at your papers, which could be online as well, and check your phone all at the same time, whilst being intensely focused," Banton said. She added, "It’s more tiring with a screen than in real life."

Michael Folsom, a renewable-energy lawyer in Hong Kong, had the added issue that some of his clients were in Vietnam. COVID meant he had to stop traveling to see them and overcome their reluctance to engage in virtual multiparty talks and negotiations, which, he said, they took their time to accept.

Assessing whether a witness is credible via Zoom has its obvious challenges. There are elements lacking when you’re meeting someone for the first time via video.

Banton said that with the lockdown, lawyers miss out on "reading the room and cross-examining a witness." This is particularly difficult with sensitive issues such as sexual and other harassment.

Folsom agreed: "You can’t build a rapport as quickly and as easily over Zoom."

Folsom does a mix of in-office and at-home workdays. At his Hong Kong workplace, his team is in the office one week, and out the next, which can be challenging in small spaces.

"Homes in Hong Kong are very small," Folsom said. He and his wife live in a 500-square-foot apartment. He said that such tight quarters can make working from home "practically unsustainable."

Allison Isaak, a commercial real-estate attorney, and her husband can spread out in their Missouri home during the workday, but with two young children, she has had to adapt to not having a separation between her work identity and her home identity.

Isaak said there are many stops and starts during her day. "Sometimes the workday feels longer just because I started work earlier, but then had a lot more breaks throughout the day, and I ended up maybe not billing as many hours, even though it seemed like I worked a lot longer."

In her job, Isaak doesn’t have court hearings, but she does have a weekly transaction conference call without around 20 people.

Once, early in the pandemic, Isaak unmuted herself to say "Hi, this is Allie," but before she could mute herself again, her son chimed in with "I’m Matt!"

"Thankfully, everyone on the call was very understanding and thought it was funny and cute," Isaak said.

A lawyer in Texas went viral earlier this year when his Zoom got stuck on a cat filter. He had to tell the judge, "I am not a cat."

That underlined how technical issues can cause big problems in such formal proceedings. Isaak, Folsom, and Banton all said they had encountered sporadic muting issues or camera troubles.

"I’m working a lot with people in countries that don’t necessarily have the greatest internet," Folsom said.

At the start of the pandemic, Banton saw some of this coming. "I changed my internet provider because I realized how important it was going to be," she said. "I didn’t have an idea how long lockdown would last, but I knew my internet wasn’t good enough."

Banton said she was still "mostly" online but has some cases on the horizon that are set to be in person.

But Isaak wasn’t sure when she’d go back to the office.

"Because of the nature of my job, I really can do everything at home. There are very few things I actually need to go into the office to do. At the same time, I do realize there’s a lost element of feeling connected to the people you work with, to your workplace," she said.

Folsom has also enjoyed the flexibility: "I’ve had quite a nice flexibility where I can go into the office, and I can work from home for a couple of days. And then I’ll get a bit stir-crazy, and I’ll go into the office."

All three lawyers said they missed the personal connection of the office, but that the pandemic has undoubtedly forced a sea change.

"I think it will never go back to the way it was before," Isaak said.

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Anne McCarthy June 5, 2021 at 02:36PM

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