It is significant that after years of doomsday predictions about Artificial Intelligence taking our jobs, and the inevitable extinction of the modern workplace, that there isn’t a single robot amidst the visceral and rapid change that is consuming us.
Rather, in the face of this pandemic, very basic considerations took over.
And now that we have been wrenched from the 20th century into the 21st, we ask whether the legal profession, our workplaces and the courts will ever be the same.
That we live in a changed world is certain. How permanently altered we will be in our societal and work habits remains to be seen, but as past Chair of the Law Council’s Future of the Law Committee what could only be imagined in yesterday’s world, happened in law firms in a matter of days.
The law has been slow to evolve. We had prepared the pathway, but we had unwilling followers. In an instant there is now, thronging these streets of change, a surge of legal professionals driven by an instinct for survival and by client obligation.
Now that the gates are opened I do not see us turning back entirely to what was.
Here are some of the differences that may be here to stay.
Firstly, if you had asked me at the start of this year if a law firm could be run from a series of home offices, I would have laughed.
Technically it was all possible, but how to shift a culture? As we have all discovered, a pandemic will do that, and so here we are practising law remotely. As our clients are in the same boat, it has to be made to work.
Difficulties exist in particular with witnessing documents. However these problems are far from insurmountable. For some time the Federal Court has allowed for unsworn affidavits to be filed for instance, on the proviso that they must be later sworn if required. The legal profession and the courts have a golden opportunity to change and to maintain the change.
Will we return to old habits? Everyone misses the society and community of the firm. However, there are lessons here that ought not to be forgotten, for there is a new way.
With the support of the courts, the legal profession and justice system can become permanently more nimble, even if we still desire the social congregation of our peers.
Second is the role of courts and tribunals. There has been a mighty effort in our state to allow the courts to continue to operate as ‘normally’ as possible, with some jurisdictions doing better than others.
Full marks to the South Australian Employment Tribunal which has seized with two hands the challenge of online conciliation and mediation. It has even offered online trials with consent of parties and where appropriate. Bravo. It is a mighty comfort to parties and the legal profession when the wheels continue to turn.
State courts have been varying in their responses, but are grappling with very difficult decisions. That said, the profession is disappointed when the default position is just to put things off that can be dealt with virtually and online. It is something of an indictment that we are, in fact, so under-prepared compared to our Commonwealth equivalents, however funding has been a preferential problem for the justice system in this State.
Looking past Covid-19, these innovations once introduced can be retained. International jurisdictions have moved in this direction. We shouldn’t let go of progress and fall back into old habits. Online justice can make the law more accessible and access to justice easier and cheaper. It is also hugely helpful to our rural and regional populations, and the elderly.
The third area that has suddenly shifted is the role of support staff. The accounting industry realised this long ago, but the law is often slow to learn and follow. The fact is that fee earners are finding they are administratively fending for themselves in a way they had not before.
Of course a cost versus benefit analysis needs to be undertaken or we risk creating false economies, but my tip is that this is one genie that will be hard to put back in the bottle. Owing to the inflexibility of the Fair Work Act, unskilled Australian labour can be eye-wateringly expensive when compared to our international competitors, and if it is ultimately not required in the volume that we now have it, there will be no going back.
Fourthly, there is a dramatic pivot from just seeing people working, to knowing they are productive. Of course we all have our objective KPI’s, but they can be deceiving and can be played. In the current dynamic, with people out of sight, there is a heightened concern about their personal welfare and their productivity. No one can be ‘carried’. Individual responsibility is back in a big way, and fee earners know it. There is nowhere to hide.
Good organisations will always have a close eye on productivity, but there is a palpable change between empathetic leadership in a growing market when skilled labour may be harder to find, to leadership that requires results and is through necessity tough when targets are not met.
Trust however remains a potent ingredient. There is, like no time before, a pact between business owners and employees. Each is entirely reliant on the other. Each shares a worry of the future and a motivation to make the business work. Suddenly what firms try to inspire day by day is a reality – everyone has skin the game. Everyone is pulling in the same direction. And anyone not pulling will not be welcome.
Can this corporate game changer be maintained? My hope is that we will survive through this period with a better and shared understanding that the boss versus employee model is and always has been a furphy in small and medium business.
Business owners have been poorly treated in this country, when we are the engine room of the economy and we create peoples’ jobs and their livelihoods.
I hope that a greater understanding of our togetherness in a business organisation will lead to permanent reform both legislatively and in our collective state of mind—there is no us and them, there is just us.
To add to that, there is a new value in having a job and in shared responsibility. For the sake of all, let’s hope our sense of joined purpose survives. We shall need it in the days and weeks to come.
Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, immediate past president of the Law Council of Australia and a past president of the Law Society of South Australia.
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