By Chris Oti
INTRODUCTION
It is axiomatic that the only thing that is constant in life is change itself. But it is definitely not every change that comes to man that he is prepared for. The Covid-19 pandemic was one change that Nigeria as a nation was not adequately prepared, and in fact the world at large faced, and is still in hard times. The Nigerian Judicial System did not fare well in the circumstance as well, as the Covid-19 disrupted not a few court proceedings, legal or judicial conferences, arbitral proceedings, clients’ interview, and many other acts that lawyers fairly engage in.
The Nigerian Judicial System being rooted in its traditional style and approach had to adapt to the situation in an average way at best. However, the practice of law vis-à-vis the Nigerian Judicial System can be improved if the many emerging trends and skills can be merged appropriately in the performance of legal and judicial functions. As such, law will cease to be the insular, static profession whose career paths were dictated by the traditional law firm partnership model. As that model erodes, it will impact career paths education and training, and the perception of what it means to be a lawyer.[1] Lawyers must imbibe creative thinking in the bid to solve the problems of their clients and in a most imaginative manner, and this is what the Covid-19 pandemic and its post period must birth in lawyers.
Lawyers are faced with the everyday task of satisfying the needs of their clients and in many instances, it is not expected that the lawyer should perform below standard, even in challenging times as a pandemic. Consequently, lawyers must adopt measures that will suit the times we are in, for excuses are a fast way to devalue one’s professional stand. Having at the outset answered that the Nigerian Judicial System is not adequately prepared for the effects of the Covid-19 pandemic, this article shall therefore focus on some of the steps lawyers and the Nigerian Judicial System in general can take in the practice of law in any sector in these challenging times; the challenges to the suggestions will also be highlighted and recommendations made in the conclusions. It may be apposite to commence the discourse with the following quote:
“Before the law stands a gatekeeper. A man from the country comes to this gatekeeper and requests admittance into the law. But the gatekeeper says that he cannot grant him admittance right now… The man from the country had not expected such difficulties; after all, he thinks, the law should be accessible to everyone at all times.” Frank Kafka[2]
THE USE OF TECHNOLOGY TO LAW AND JUDICIAL PRACTICE
The Judiciary is proclaimed as the third arm of government in any politically democratic nation, and as such her independence and practical functionality ought to be a priority for government. In a country where many cannot afford and gain access to justice, where the court processes and systems are basically a current of papers; and whereas a good deal of the people are in touch and are gradually embracing the benefits of the internet, it becomes imperative that the judicial and legal system take a good leap consistently into the use of technology for legal practice. It goes beyond the hue and cry of virtual hearing but a revitalization and redirection of the legal and judicial processes and system to the technological tide.
The fact that as basic as the use of technology for filing of court processes is yet to be fully implemented in many of our courts is quite disturbing as same acts as a clog to the issue of speed to the institution and prosecution of cases. In this time of the pandemic and its aftermath, the Nigerian Judicial System should embrace technology in the methods of filing of cases, record purposes and detailing of court proceedings. The application of technology to the judicial system would make the practice of law easy in research, automated processes, availability of better resource and management, increased transparency and customer or client accessibility to mention a few.
The use of technology must include the issue of increased connectivity of lawyers with their clients and accessibility to learning of law electronically. The Covid-19 pandemic with its effect on the financial and economic situation on clients cannot be over-emphasized; what lawyers must do is to ensure that in the practice of law at this time, is to maintain close contact with the clients vide technological means. Thankfully, social media has made it very easy for individuals to connect with their friends, family and associates; this way, the client or the lawyer is not only reached when there is a legal need. The relationship is deepened as a result producing a good working lawyer and client relationship.
THE “MORE FOR LESS” CHALLENGE
The Covid-19 pandemic particularly dealt financial blows to all and sundry, and as such it is necessary that lawyers and the judicial system must take same into consideration in legal billing. The low income earner, the market women or even the local artisan who in the usual state of affair cannot foot bills for legal services have now become more despondent. Not many lawyers are prepared to take up legal works for pro bono; as such a revisiting of the billing system is imperative. There has been an upsurge of proposals for work being undertaken on a fixed-cost basis or on a capped basis….others have gone further and put forward more exotic approaches such as “value billing” which involves, in a variety of ways, charging for the value of the work undertaken rather than the time expended; or a variant on this, charging for time and cost saved rather than time spent.[3]
The charging for value in this writer’s view will make legal billing a bit structured and would enable the clients to appreciate the payments they make in these times.
The fact is that many lawyers are not prepared for this challenge of the Covid-19 pandemic as can be seen from the telling effect of it on the judicial system. Consequently, it is expected that since clients will be more inclined to be charged less than usual, the decentralization of some of the legal works among paralegal or other members of the law firm is commended. This can be done through the use of precedents and commoditization of legal products, whereby the needs of clients are merely fitted into the samples or precedents appropriately by the non- lawyer employees of the firm. This in turn gives the lawyer the free chance to focus on other high value tasks that would bring in higher revenue.
CREATIVITY IN LAW PRACTICE
It is a known fact that lawyers are traditional in the rules and practice of the profession; it becomes a challenge to maintain creativity in such circumstance. But, the disruptive effect of the Covid-19 should compel lawyers to not just think outside of the box but to create new boxes. For instance, the use of standardized and systemic documents would reduce some of the risk associated with the pandemic. Arguably, the Covid-19 pandemic brought about the opening of new fields of law that hitherto were not seriously practiced by lawyers, like technology and telecommunication law, Online Dispute Resolution, International monetary and financial transactions, particularly with respect to business/commercial and equity financing.
The lack of a shift in thinking from the traditional or bespoke way of practice answers why the Nigeria Judicial System is still flooded with court cases despite the pandemic. Ordinarily, creativity should enable lawyers to engage in alternative dispute resolution, particularly online dispute resolution where the issues between disputing parties can be resolved or at least attempted to be settled before instituting legal action, but because even the court system are in true sense not serious with alternative dispute resolution, hence the bent to traditional litigation, which hinders creativity in law practice. The attitude of courts must go beyond the filing of pre-action counseling certificate to demanding strictly for further proof of arbitration before the filing of cases.
We concede that there are some questions surrounding virtual hearing and online dispute resolution, but in the resolution of disputes which is a cardinal function of the Nigeria judicial system, the need to be prepared in this regard is crucial. Very few law firms have yet taken ODR seriously, but it is predicted in the long run to be the dominant way to resolve all but the most complex and high-value disputes. For law firms and court lawyers, this is a direct assault on their conventional work. But it is also a great opportunity-to become a leading expert in the field.[4]
THE NEED FOR LEGAL HYBID LAWYERS
If there is one other thing the Covid-19 pandemic has presented to the judicial system is the need for interplay between law and other professions or subjects. It is not in doubt that for instance, there were increased cases of retrenchment at the workplace, divorce, loss of properties and a host of other negative effects. How then will a lawyer attend specially to clients negatively battered in this respect? This in this writer’s view calls for the need for a marriage of law with other sectors in this period of the pandemic and afterwards; and as such it shows the inadequacy of many lawyers in the understanding of issues relating to psychology, marketing, accounting, banking, economics, security, stock market, real estate, tax, project management, technology/data science, shipping, etc; and assuredly this would require rigorous training which lawyers are shaped ordinarily to be able to undertake.
As clients continue to push for more ways to efficiently and effectively meet their legal needs individually or as a corporation, the ability of a lawyer to be multi-disciplined portrays an area where lawyers need to be prepared adequately for. Legal professionals looking to expand their skillset, marketability, and earning potential by taking on a hybrid role should first assess their abilities and past experience to determine which path might be the best fit[5]. Keep in mind that soft skills such as time management, teamwork and flexibility are just as important as technical skills, and can set great hybrid candidates apart from the rest.[6]
CONCLUSIONS
It is settled that the impact of the Covid-19 pandemic are still obvious in the practice of law and the Nigeria Judicial System as a whole, but it calls us to the long overdue need of the legal profession. The quest for technological adoption in the judicial system is easily bedeviled with the lack of political or judicial will to follow through with the policy; the lack of funds to build these technological devices and facilities, and in not a few respect, includes insufficient technological skill of many lawyers and judicial officers and personnel. The solution to the need for the use of technology is therefore not beyond reach if we can ensure the training and professional development of all stakeholders and the investing of resources in this regard, with the requisite proactive inclination towards technology change expectation and adoption.
It is also contended here that another reason why it appears that Nigerian lawyers are not adequately prepared for the challenges and impacts brought about by the pandemic, is the structure to which we use for the practice of law. We must seriously begin to see law as a business, and as such the business entity with which the practice of law is driven must move from a sole proprietorship or a partnership to a full blown corporation. This way, lawyers are not likely to run the practice as a one man business but will incorporate other professionals. This would in turn solve the challenge posed by the legal hybrid need and a reduction of the financial burden on lawyers to run a law firm.
Efficiency, speed and quality are required during this time, and lawyers must see the service of law as a product that should be packaged to be delivered timeously. In that vein, outsourcing of some parts of the legal steps for a particular case or legal need is necessary. It is expected that such parts as legal research, case review, due diligence, legal drafting or writing, may be carried out by young lawyers to help in the proper training of the future of the profession, as some of these will open them up to the emerging trends, cases and areas of the law, thereby equipping the legal profession. Consequently, a change in the curriculum for the training of our law undergraduates in the universities must be reviewed adequately to include the practical teaching of technology/data science, online hearing and dispute resolution for an improved futuristic law practice.
In the final analysis, the job of a lawyer whether in a pandemic or otherwise is to find a way to let justice roll on like a river, righteousness like a never-failing stream.[7]
[1] Mark A. Cohen, After-Corona Legal Careers: More Choice and Less Practice, http//:www.forbes.com-del May 14, 2020, accessed 5th April, 2021.
[2] Culled from Richard Susskind, Online Courts and the Future of Justice, Oxford University Press, Oxford, United Kingdom, 2019
[3] Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future, Oxford University Press, United Kingdom, 2013, pg.31
[4] Ibid
[5] The Docket Blog; Hybrid Legal Professionals: An Exciting Opportunity For Law Firms and Legal Pros; http//:www.juristemps.com, 17th September, 2019, accessed 13th April, 2021.
[6] Ibid
[7] Amos 5:24(NIV)