Article byPosted Featured AuthorJune 2020
As I sat down to begin work on this column, while waiting for my computer to start, I checked FaceBook on my iPhone. It reminded me that two years ago I ate lunch at a place called Urban County Kitchen in Walnut Grove, Mississippi, with some of my good friends and clients from First Financial Bank. I posted the pic and a short blurb. That FaceBook post prompted my friend and former law partner Chris Shaw to ask me if I wanted to write for this newsletter, along the lines of the former “Road Eats” column. Needing a creative outlet (a low bar, I know), I readily agreed. Thus began Blue Plate Highways.
Flash forward two years, and look closely at the title above. You will see a question mark. That is intentional. As with many things, the future of Blue Plate Highways is in question, due to the ongoing COVID crisis and the unwritten, unknown ways that we as a society, as a state, and as a profession are going to respond.
When I say “the future of Blue Plate Highways,” I don’t just mean the column. I mean “Blue Plate Highways” as a cultural institution of Mississippi legal practice. I am not the only lawyer in Mississippi who travels the back roads, byways, and pig trails of this state going to court, taking depositions, and conducting foreclosures in small towns in the Delta, the Piney Woods, the Gulf Coast, and elsewhere. Lots of Mississippi practitioners do so, creating a common bond among those who ride the roads and visit the small towns that so many other Mississippians never see while they rotate between Jackson, Oxford, and 30A.
Blue Plate Highways is not just about eating at hole-in-the-wall restaurants, although that is obviously the pivot point. Blue Plate Highways is a column. “Blue Plate Highways” is a concept. That’s why the title above is not only italicized, but is in quotation marks as well. The future of Blue PlateHighways depends on the future of “Blue Plate Highways.”
To-wit: in late January through mid-February, I had court in Huntsville, Alabama, a client meeting in Hattiesburg, a deposition in Carthage, and multiple hearings in Canton, among other things. On deck for the third week of March were a deposition in Batesville, a meeting in Senatobia, and a foreclosure in Hernando. I had planned to take a client to Kennel Club in Batesville for dinner the first night, with lunch the next day at Court Street Patio with another client, and dinner with yet another client in Southaven that evening. Lunch the following day after foreclosing would likely have been Windy City Grill in Hernando, or Tribeca in Sardis (outstanding pizza). I also had depositions scheduled for the following week in Carthage, with a return trip to Huntsville planned for late March for another hearing in bankruptcy court.
None of it came to pass. Everything ground to a halt following the President’s declaration of a national emergency on Friday, March 13. Banks closed their lobbies, courthouses closed to public access, and life changed. There is no telling how many orders of continuance were entered by courts across the country. On top of that, courts entered orders mandating telephonic hearings on almost everything that does not require presentation of evidence. “Zoom” became a household word overnight.
Restaurants also shuttered. After trying to stay open to conduct take-out only service, many shut their doors. In Jackson, Hal & Mal’s and Keifer’s downtown both tried it for a week or so, but then closed. Others braved it, and remained open to cater to those of us still going to the office at least some of the time. For now at least, restaurants are beginning to re-open.
What does all this mean for “Blue Plate Highways” and thus, for Blue Plate Highways? The latter derives from the former, and the former is still somewhat in question. Will courts adopt telephonic hearings as “the new normal” for almost all non-evidentiary hearings? Or will state courts adopt the federal court practice of ruling on most motions without conducting hearings? I have already had one Chancery Court do just that, on a motion to close out a receivership. Will video depositions become the norm?
There is no doubt that certain motions can and should be heard by phone, without the necessity of personal appearances. The cost savings to litigants can be substantial. My adversary proceeding in the Huntsville bankruptcy court is a perfect case in point. For a variety of reasons (including COVID-19), it keeps muddling along. Since my initial appearance there, the court has conducted three telephonic status conferences. Appearing telephonically has saved my client a lot of money.
Or has it? If the court had held the March status conference in person, would the personal interaction and dynamic have allowed for a deeper discussion that would have promoted settlement? We are two months down the road, with tele-conferences held in April and May. I have asked opposing counsel to respond to my settlement offer, but have not received a reply. Part of me firmly believes that a live, in-person court appearance in March could have made a difference, due to the likelihood of increased instructions and feedback from the court, and the opportunity to discuss the case before and after the hearing. Of course, we’ll never know.
In addition to believing in the practical benefits of live, in-person court appearances, I am an inveterate disciple of the culture of the courtroom and law practice. We all have to draw lines in the sand, take hard positions, and scrap with other lawyers at times. And I will not pretend that I have always shaken hands with opposing counsel before or after every hearing. But most of the time, at least in my world, the geniality and professionalism of the courtroom bleeds over into the day-to-day grind of dealing with each other, and getting things done for clients.
More than that, there is simply an irreplaceable cultural benefit in the ritual of showing up before court is called to order, chatting with lawyers you know, meeting others you don’t, and then having your case called, with all eyes on you. It is an irreducible element of being a litigator in Mississippi, and we will suffer a profound loss if the temporary practices become the new normal.
As for depositions, I have not conducted one by video yet. According to one lawyer I have spoken to, video deps can actually be better and can elicit more information in certain circumstances. Maybe so. I can see the benefit in conducting a short deposition, with few if any exhibits, by video. But all in all, count me skeptical. I just do not see how video can replace live, in-person examination in a conference room, when extended questioning and review of documents is necessary. It is not only an issue of procedural substance. It is part of the nuanced fabric of litigation. How many times have cases settled, or at least made material progress toward settlement, when the lawyers have had a chance to talk in person after such a deposition?
I cannot count the number of times I have heard older lawyers talk about how much more fun law practice was “in the old days.” “Things were more collegial,” they say. Even since I began practicing in 1996, the culture and landscape have shifted, and we have lost certain things, while gaining others, including efficiency and flexibility in many areas. There are certain things I would never want to go back to, including the tyranny of the tie for every workday but Friday.
But actually going to court is another thing. It’s a sine qua non of being a litigator, and is part of the glue that binds the fabric. Same goes for taking depositions of a party or a witness at opposing counsel’s office, wherever that might be. Going to small towns across Mississippi has been one of the most enjoyable aspects of my 24 years of law practice. Traveling to Walthall for Chancery Court, Aberdeen for Bankruptcy Court, or Magnolia for County Court, and appearing in state and federal courts all across Mississippi, is part and parcel of what it means to be a litigator here. Knowing places to eat like Allison’s in Belzoni, Walnut Hills in Vicksburg, and The Stables in Tupelo, and knowing to time your trip back from Columbus or Macon to eat the buffet at Lake Tiak O’Kata, is all part of the fun. We need that. Mississippi needs it as well.
Here’s hoping some things don’t change. When the time comes, we need to get back to the courtroom and the conference room. Let’s not let COVID-19 claim our legal culture as well.