Dangerous Enterprise | Above the Legislation

Risky Business | Above the Law

Consequences, beautiful sequences …

Everyone is now assessing risk: for themselves, for family members, for the community, for friends and so on. Every decision now comes with the decision of whether it's worth the risk of going to the store, fetching gas, hanging out with a few friends at a social distance, doing one or two errands. Do we send our children back to school? Are we being tested? Do we mask? How can the risk be assessed in each of these situations? "What do you think?" "What do you think?"

Everyone is concerned about the corona virus and for good reason. How do you determine your risk by doing normal or at least normal things before the pandemic? We haven't thought about how to shop, go to ATMs, open Amazon packages, go to work, or go to court. Now every decision involves a kind of risk assessment regarding the possible danger of doing these very everyday tasks. We took it for granted to hang out in the hallways of the courthouse and cafeteria, cuddle for advice we saw in the courtrooms, and queue at the Starbucks without thinking about whether there was any risk. Then there was. That is now.

The internet has exploded with articles on risk assessment during this pandemic period. Only Google's "risk assessment" and links about the corona virus and risk abound. There are many questions and no good answers, at least for those trying to wriggle through the information thicket, some good, some not so good.

Deciding how to manage your practice and clients during this time is not an easy one. Many courts encourage lawyers to appear remotely, which may be attractive to some but not attractive to everyone. It can be daunting to think about my judicial system – the largest judicial system in the country – and how to perform in person. Only those who do business in court should be there. While masks are required, the court does not require temperature controls, but hospitals and doctor's offices do.

Thinking about risks and possible results now has different meanings. We have always communicated to our customers the “risks versus opportunities” that result from the review or solution. The risk now looks different. Are we still working from home as the virus grows across the country?

What are the options for risk assessment? Is it better for the customer to roll the dice in court? What does the customer think will happen? As we all know, customer expectations often have little to do with reality. Getting the customer off this edge is often an integral part of our work.

What are the possible outcomes? It is often good to build a decision tree, but in the case of coronavirus, which resembles a punch in the mouth, the results today can be difficult to predict and even more uncertain if potential judges refuse to report to the jury's duty.

What does the customer think about the possible results? If your client believes that you want a summary judgment and want to be in the courtroom with you when you dispute the request, you are in that courtroom whether you want it or not. Perhaps it could be helpful to tell the client that the court is strongly calling for technology to be used for distant appearances.

Every decision harbors a certain degree of uncertainty. The problem then becomes – and this is personal for everyone – how do you tolerate ambiguities and risks? That is the question we ask each customer and ourselves.

The presiding judge here in Los Angeles has issued a new emergency order that will last until August 8, 2020. Given the explosion of the virus in Los Angeles County, this date can be extended. Note the heading in the press release: "The Covid 19 pandemic continues unabated." How does this heading affect your risk definition?

Wear a mask? It is required in Los Angeles County's courtrooms, but there are inconsistencies in other court buildings across the state. For example, in San Joaquin County, in the middle of the state's arable land, a deputy public defense lawyer visited every open Supreme Court section to check compliance. Even though there is a nationwide mask regulation, compliance wasn't 100 percent, especially among law enforcement agencies. When you go to court, do you take stock of compliance? Maybe you should do it because the risk of not wearing a face covering is high.

Is it safe to take a bar exam in one of the states that insist on taking a bar exam in July? Your future or your life? Which is it?

The Los Angeles Times has approved the concept of a temporary “graduate privilege” for law school graduates in 2020. The newspaper, which repeats the words of many deans and professors from the law school, says that "graduating from an accredited law school must surely count for something." Yes, it should, but there are a number of non-accredited law schools in California. What happens to these graduates?

And then, after the dust has settled on this year's exam agendas, the Times suggests that it's time to rethink the whole rationale for the bar exam.

It is up to the California Supreme Court and the Board of Bar Examiners to decide what to do with this year's bar exam. These two groups will certainly also carry out a risk assessment. Access to justice or public protection?

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers having worked as a lawyer in a friendlier time. She has had a diverse legal career, including positions as deputy prosecutor, one-on-one practice and several high-profile internal appearances. She now teaches all day what gives her the opportunity to see dinosaurs, millennials and the people in between – it is not always polite. You can email them at oldladylawyer@gmail.com.


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