Why maybe the best answer is I don’t know
I am in the business of giving information and advice that my clients can then act upon. But right now, that seems to be quite the impossible task. The news and information is constantly unpdating and changing, and, depending on the source, contradictory. This makes it nearly impossible to give any consistent advice.
For example, take the question of wearing masks in public. Do we wear masks? Do we not wear masks and save them for health care practitioners? Do we wear homemade masks made of bandanas? Or T-shirts? Or do those not work? Depending on the source, you might be wearing a mask that does little. So, in the end, I ended up confused whether a home-made mask was worth anything, and instead, have decided that unless you are my cat or husband, you are not allowed anywhere near me. I am not more qualified to give this answer than most of you are. I am sure the whole mask debate has left many others confused..
The information flow is not just relegated to the question of whether we should wear a mask when we need to go out in public. It touches every part of our daily lives right now – what we can do, where we can go, what we should do with our groceries, mail, how much toilet paper we should buy (if we can find it, that is). The only thing that everyone seems to agree on is that hand washing is a good thing.
Attorneys often deal with contradictory information, but it is usually contradictory legal information. As law students, we are taught how to read legal cases and statutes. We are taught how to apply them to the situation our client faces. We learn which sources are more reliable than others. Finally, we learn how to take situations that are not similar, read very diverse legal opinions and rulings and combine them into advice.
However, these rules of how to take information and render advice seem to be upended right now. The highest source of law is either the US Constitution or the state constitution, depending on the situation (if it is a question dealing with issues not reserved for the federal government, it is probably a state issue). From there, there are supreme court rules, statutes, Federal and State Supreme Court cases, and lower court cases. Traditionally, the courts interpret what the legislature passes. Attorneys apply these rules and interpretations.
Now, there is third entrant into the legal landscape – the Executive branch. This is where the confusion begins for lawyers. For example, the Governor of Illinois issued an executive decree that notarization could happen remotely, but there was little to no guidance on how that was supposed to happen. Only after several days did we receive more guidance, and even then, its questionable how this will apply. Without stirring up the nightmare of high school and causing a flashback to civics class, legislatures create laws by legislators drafting them, debating terms and redrafting, and then the legislature vote on the passage of the law. But now new laws seems to just magically appear. When they do, attorneys have to figure out how they apply and what advice to give clients.
This is not the only aspect of the law that executive orders have greatly impacted. The courts were then told to figure out what cases were important enough to proceed at all. This has led to a patchwork of application, where one county is hearing some cases, others are having in-person court, and yet others are not hearing any cases. What cases are important enough to hear? Well, it all depends, and really, I don’t know. Should I exchange my kids? Probably – but frankly,I don’t know. Can I get divorced? Maybe – but I don’t know.
The new rule-making, laws and information leads to confusion among lawyers. And honestly, this is our first pandemic too. Many lawyers are less familiar with working remotely, electronically signed documents, or seeing clients through video rather than meeting face-to-face. The law is not a profession that quickly adopts new technology quickly. It took Illinois until 2017 to mandate e-filing. I know of attorneys who still dictate, who demand signatures with a pen, and do not have internet at home. There are some lawyers who have practiced law in the same way since they graduated, often decades before people carried phones with enough computing power to put a person on the moon. Additionally, we are being bombarded by the same information you are, the constant updating and many, many contradictions.
This has decreased the output of many attorneys – myself included. We also worry: will our office survive this financial calamity? This is added to the question of whether we personally will survive COVID-19, and if our loved ones also will. We are operating scared ourselves. But no one expects an attorney to be a human, with human fears, needs and desires. Instead, it seems the public often thinks we are just waiting in our offices, like robots awaiting the next request to fill information. I promise, I seem to be human, or at least humanish.
With the rapidly-changing landscape, it feels like the ground beneath my feet might be made of quicksand. There is not a clear hierarchy of who is the most authoritative voice. There is not a clear interpretation of how to apply the new rules and regulations. There is not a best place to turn for an answer. Everyone claims to have the right answers, the best information and be the proper authority to listen to. All this does is lead to more noise. But the noise demands constant attention.
Within moments of a governor making an announcement, attorney email inboxes and voicemails are flooded with the same question: what does this mean for me and my case? Each time there is a pronouncement, I have not even had the opportunity to read the executive order, much less think about its application before I receive the request to apply it. And too often, the answer is I don’t know. Why don’t I know? Because there is no precedent for this. There are no clear-cut rules, no bases for comparison, and the executive orders often appear to be drafted in haste. Remember, human, not robot, and its my first pandemic too.
So, at least in the legal world, the best answer is I don’t know. I do not see this changing at any time real soon either. Until we, as attorneys, have better direction, the answer will remain I don’t know. When I know, I will pass it along. Until then, I am probably sitting on my computer, hunting for supplies and scrolling through Tiger King memes, just like you.