The theme of the latest edition of the Oakland County Bar Association’s LACHES is New Lawyer Challenges. The OCBA defines new lawyers, for purposes of participation on its New Lawyers Committee, as all OCBA members who have been practicing for 10 years or less. As a lawyer who does not fall within that definition, I cannot possibly comment on what might be top of mind for a new lawyer. Therefore, in order to do so, I went far back to my undergraduate training and concurrent employment with The Ann Arbor News as a freelance journalist, put on my journalist hat, and interviewed a few new lawyers (who shall remain anonymous).
The most significant challenge each of these new lawyers said they were facing in their young careers was lawyering by Zoom. As one new lawyer said, “It makes me feel isolated. Just learning how to be a professional is challenging, and because Zoom cuts out all human courtroom interaction, we don’t get the opportunity to learn from the older generations of lawyers.”
Not long before I started putting together this column, on August 10, 2022, the Michigan Supreme Court adopted ADM File No. 2020-08, amending Administrative Order 2020-08. Notably, it was adopted by a narrow majority and not without passionate dissent. The order makes effective, as of September 9, 2022, amendments to the Michigan Court Rules related to the Michigan trial courts’ use of videoconferencing technology (“Zoom”). The procedural history of the order is set forth in detail in Justice Viviano’s dissenting opinion, and as he states, it was born out of the court’s response to the COVID-19 pandemic and a series of administrative orders governing how the courts should operate during the pandemic.
Significantly, the amendments to the Michigan Court Rules adopted by the court make it clear that Zoom is here to stay — not just as an option for judges and attorneys but as a default in most instances. The court adopted a new court rule, MCR 2.408, entitled “Use of Videoconferencing Technology in Civil Cases.” The rule sets forth various types of proceedings in both circuit and district courts that should “presumptively” be conducted by Zoom. Additionally, as a result of the August 10 order, there are “presumptive” or “preferred” Zoom proceedings specifically identified in family court proceedings, civil infraction proceedings, probate proceedings, and criminal proceedings.
While any party to a presumptive Zoom court proceeding may request to participate in person and be allowed to do so, other parties to the proceeding must be allowed to participate via videoconferencing technology. The only exception to the requirement that all other parties must be allowed to participate via videoconferencing technology is if the court determines that a case is not suited for videoconferencing and requires an in-person hearing. However, as noted in MCR 2.407(B)(5)(a) and (b), the court has to first undertake an analysis of 12 distinct factors before requiring an in-person hearing for all participants and state its decision, in writing or on the record, presumably with reference to its findings after application of the 12 factors set forth in MCR 2.407(C).
What does all of this mean for the new lawyer? According to the new lawyers I interviewed, it means heightened anxiety about growing and learning as an attorney based on experiences thus far in a Zoom world. As one stated, “Learning to be confident enough to trust my own decision-making is part of growing as a young lawyer. Practicing on my own without supervision during the pandemic was very daunting, and I had to learn to trust my own judgment without anyone looking over my shoulder. It was a lot of pressure knowing that I not only needed to gain the trust and respect of other more established attorneys, but also that I held people’s lives in my hands.”
The inconsistency of Zoom proceedings from one courtroom to the next is now a reality of our profession, and the newly adopted court rules don’t do anything to make Zoom proceedings more consistent in this regard given the “opt out” procedures built in to MCR 2.407(B)(4) and (5). One new lawyer said, “A big challenge for new lawyers is trying to adjust to a constantly changing legal system. You’re in person in one place but not in person in another. The procedures and rules related to what’s in person versus what’s not in person in one courtroom are different than the procedures in another courtroom. Overall, things are unpredictable, and it’s challenging to learn and adjust.”
As one who is far removed from being a new lawyer, yet one who remembers so clearly the benefits of human courtroom interaction as the default, I know that finding ways to help mitigate the challenges of our new lawyers in a presumptive Zoom world should be at the top of our priority lists. As I said in my last column, we’re all in this together.
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Elizabeth L. Luckenbach is the 90th president of the Oakland County Bar Association. Luckenbach is a member in Dickinson Wright LLP’s Troy office.
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