Marshall McCluhan coined the term “the medium is the message“.
This means in plain terms, without introducing a PHD thesis on the issue, that chosen method of communication to broadcast a message has a significant impact on how the message is received and understood. It’s almost to say that the way that the message is communicated (print, tweet, TV broadcast, radio), is just as important as the content of the message itself.
This notion that “the medium is the message” is very important when considering the impact which COVID-19 has played on our Courts and how personal injury claims are being litigated today.
This first struck me in the early days of COVID, after my first virtual discovery and my first virtual mediation. I had not done a virtual discovery, or a virtual mediation prior to COVID. Virtual proceedings were the exception and not the rule. It was expected that lawyers and their clients would meet in person for these earmark events in a personal injury case. Sometimes, an insurance adjuster would not be able to attend in person. They would be available over the phone. This was frowned upon because everyone was expected to be there; particularly for a mediation. But sometimes unfortunate life events would happen which prevented an in person attendance. We would proceed nonetheless and hope for the best.
The notion that “the medium is the message” never struck me as hard as after my first virtual mediation.
For starters, the mediator needed to be confident and knowledgeable using the Video Conferencing Platform that we were using. In that case, it was ZOOM. Some other platforms include MS Teams, Google Meet or WebEx.
In any event, the mediator needed to be confident and knowledgeable in using this platform. The virtual mediation was the mediator’s party so to say. It was his responsibility to make sure that the mediation proceeded smoothly and that everyone could communicate with one another.
Sad to say that in my first virtual mediation did not go smoothly. This was kind of expected given that the medium (in this a multi party video conference via Zoom) was brand new to everyone. We had problems setting up breakout rooms, getting people on the chat, sharing screens, sharing documents and with overall communication. These hiccups in communication had NOTHING to do with the merits of the case, but they certainly impacted the flow of the case that day. The mediation did settle, but I cannot say that it was a smooth mediation given these communication and tech issues. But I don’t blame anyone. It was a new world we all needed to get used to.
As the pandemic has rolled along in it’s first season, and then second season, and now by season 3 of COVID, I can say that mediators and lawyers are all more confident and familiar with using these virtual conferencing platforms. Mediations and discovery proceed in a much more fluid fashion than they did in the early stages of the Pandemic when were all very new to the virtual legal video conferencing world.
But what made a good mediator in the past, is not necessarily the same thing that what makes a good mediator in the COVID age. A mediator can have a great understanding of the law, great command in the rooms, a great understanding of the case and the respect from both insurers and plaintiffs alike. But if the mediator is not proficient using these video conferencing technologies, then s/he is impairing the mediation process altogether.
The same can be said for personal injury lawyers.
If a personal injury lawyer can’t properly grasp the tech then how can s/he effectively advocate on behalf of his/her client?
If a personal injury lawyer can’t log in and present effective arguments in the virtual world where discoveries, mediations, motions, pre-trials and trials are being conducted; then how can that personal injury lawyer do his/her job?
It’s not so much about the personal injury lawyer’s understanding of the case, understanding of the law or gravitas which s/he may have. Rather, it’s about their proficiency navigating the medium; which today in the COVID era is videoconferencing.
The same can be said for Judges as well.
Most Judges have Court staff to help them set up their hearings (Motion, Pre-Trial, Trial etc.). But if the Judge cannot effectively navigate the tech in front of him/her, it will likely impact on the flow of the hearing, the length of the hearing and the overall administration of justice. It has nothing to do with a Judge’s experience, understanding of the law or understanding of the evidence in the case. It all has to do with how the Judge copes with the virtual way in which cases are being presented during the COVID age.
Which brings me to my final point. In law school, we are taught the basics of trial advocacy. Those trial advocacy techniques are refined through observation, continued training and the experience of learning by doing.
There ought to be emphasis in law school on not only in person advocacy, but equally virtual advocacy. It may very well be that we hold on to a lot of the hallmarks of virtual litigation. We also need to emphasize additional training for profession on virtual advocacy so that we can better serve our clients and the public. Finally, we need to make it easier for lawyers and for members of the public to observe virtual hearings from the comfort of their own home. It used to be that junior lawyers could just stick around the Courthouse after their motion or hearing to observe litigation in action. Those days are done. But that’s not to say that young lawyers or members of the public cannot do the same virtually from the comfort of their own home. In my experience finding open to the public links to trials or motions is easier said than done. I’ve seen links sent to our office for an open Court session sent hours before the hearing itself. These links were not made available to the public. This is just fine for the lawyers doing the hearing I suppose. But that’s not how Courts should operate. Courts with few exceptions are meant to be made open to the public. I fear that we have lost a bit of that in the virtual world whereby only legal industry insiders have the access codes to get into a hearing which should be made public. But, this is a very easy fix which I hope to see.