December 2020 Bar Bulletin
As COVID-19 and a bunkered president threaten how we live and serve as lawyers in our community, some of us may be struggling.
Some even fear, as I teach law students, that “Doomsday” may be nearer than they think. In this last day of class exercise, I challenge these future lawyers to imagine an existential threat to legal institutions that changes everything, including the rule of law. Students must encounter plausible scenarios leading to war, a cataclysmic terrorist strike, overwhelming cyber-attacks or biological release on a large scale. How might this change the rules by which we operate as a society, and what will happen if legal institutions and the rule of law that guides them vanish in a puff of smoke?
This can be disconcerting, especially for those imaginations that turn to the use of torture, armed militias, racial strife, class divide and even the outright violent overthrow of our form of government. One student emailed me after a Doomsday Lecture to say, “Professor McKay, that exercise made me go home and throw up.”
Today, with the COVID pandemic ravaging our country and the world, we all have to resist the urge to go home and throw up.
As lawyers, the message is the same one I tried to instill in law students. Our legal institutions, though under extreme pressure, will emerge stronger after COVID and after a president finally leaves after mocking the law and substituting lies and demagoguery for due process. We will emerge stronger from these challenges because our lawyers, judges and all who love democracy will not give up on our Constitution and because heroes among us will do the right thing, both in and outside of the spotlight.
Regardless of political persuasion, most lawyers are having a difficult time digesting President Trump’s assault on the election outcome. Fighting hard in the political arena is one thing, attempting to subvert voting rights and the institutional integrity of free and fair elections is another.
Some days, we don’t know whether to laugh or cry as we read of the lies, distortions, bungled news conferences and hapless court appearances of Trump’s minions. There is a certain satisfaction, however, witnessing the “I’m melting, I’m mellllllllting” moments of the Rudy Giulianis as our courts demand legally sufficient evidence in place of steaming bullcrap. But for this to happen, we need as one of our founders chillingly foresaw, women and men of integrity and fortitude must act:
If ever a time should come, when vain and aspiring men shall possess the highest seats in Government, our country will stand in need of its experienced patriots to prevent its ruin.
– Samuel Adams
Indeed, we do have among us such patriots. These courageous warriors for justice are quiet heroes fighting to protect our health in our courts, law firms, legal departments and in solo and small firms serving Main Street and rural areas. It’s not easy, when many must also tend to children trying to continue their education without any classrooms. It’s not easy when lawyers must care for their loved ones, for aging parents and their clients.
But they do it.
These everyday heroes get up each morning, take a deep breath and tackle the inbox, warm up the telephone and Zoom camera and go about helping their clients. This is how we prove ourselves as lawyers in times of societal stress and upheaval: We do our jobs, strengthen the pillars of the law and defy Doomsday.
We are inspired by others who do not shy away from running the gauntlet of COVID and political risk. Superior Court Presiding Judge Jim Rogers, joined by judges Regina Cahan and Dean Lum and all of our judges, took courageous action to suspend in-person jury trials to protect the safety of jurors, witnesses, lawyers and court personnel. Rather than wait until the crisis forced the court to play pandemic defense, Judge Rogers and the court boldly moved to all Zoom trials, having already conducted some of the first Zoom jury trials in the country.
Among the steps being announced in the Court’s recent emergency order:
• Suspension of all in-person trials until January 11, 2021
• Civil and family law and dependency bench trials will be conducted virtually
• Civil jury trials will proceed virtually in appropriate cases and in criminal cases by agreement of the parties
• Court leadership will consult with medical and public health experts to reevaluate these steps and effective dates, and will continue to take steps within their power to assure safe environments for resumption of in-person proceedings
We can be heartened by our leaders who understand the threat to our democracy and who will not wait for others to step forward. Still, much needs to be done to preserve the constitutional rights of criminal defendants and lawyers, witnesses and court staff must be trained, patient and courteous to one another as we face this challenge together. We must remember to support one another, remembering at all times that some burdens weigh more heavily than our own.
We can see some of it if we open our eyes, our hearts and our minds. Our prisons, overfilled with Black lives and a failed war on drugs are experiencing far more than their share of the COVID public health failure. The moral implications are frightening when a society allows a deadly virus to roam wildly through its prison populations without taking adequate steps to prevent it.
COVID hospitalizations and deaths among Blacks, Hispanics and inner-city immigrant populations far outstrip those of prosperous, suburban, mostly white enclaves. The economic safe harbors of continued employment and adequate personal savings are clearly not available to all in our country, making ongoing health and even survival part of the class divide.
Not all of these issues can be addressed by lawyers or the courts, but we as lawyers must encounter them and ask what role we play in addressing or perpetuating these conditions.
I could have done better for my law students if I had known more about Kintsugi, an ancient Japanese art form in which broken pottery is repaired using lacquer and gold so as to create a new seam, highlighting the break. What was broken becomes a beautiful scar. Let us not tire of our work or be overwhelmed by what we are witnessing. Rather, let us be stronger at all of our broken places, as we emerge from what will be a long winter to brighter times.
John McKay is the President of the King County Bar Association and a partner at Davis Wright Tremaine. He can be reached at email@example.com.