In this episode of Summary Judgment, Josh, Aaron and Margaret discuss how the COVID pandemic affected the firm, and what they did to navigate it successfully.
Listen here or read the transcript below. FVF’s Summary Judgment podcast is available wherever you listen to podcasts including Apple Podcasts, Spotify, iHeart Radio, and more.
0:00:00.0 Aaron Von Flatern: Thank you for tuning in to Summary Judgment where Austin personal injury attorneys Josh Fogelman and Aaron Von Flatern of FVF Law discuss the ins, outs, and in-betweens of personal injury cases.
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0:00:16.1 AF: Hey, Josh.
0:00:16.5 Josh Fogelman: What’s up buddy?
0:00:17.4 AF: Hey, do you remember why we named this Summary Judgment?
0:00:22.4 JF: No.
0:00:24.7 AF: Let me give you a better question. Do you remember whose idea it was to name this Summary Judgment?
0:00:30.3 JF: Probably your idea.
0:00:31.6 AF: Okay. I’m summarily judging you for the first answer.
[laughter]
0:00:38.3 AF: But you were right on the second one. And part of our firm’s ethos is transparency, right? So in full transparency, the answer was it sounded kind of cool, and it sounded like legal, but then we looked back on it and we said, you know what? It is. We are like summarizing what’s going on in our field, so there was like a tie in there, right?
0:01:01.5 JF: That makes sense.
0:01:02.6 AF: Okay. Margaret, what’s your take on that?
0:01:05.8 Margaret Von Flatern: I love the name.
0:01:07.3 AF: Okay. Well, with that, I’m gonna get out of the way. It’s Margaret’s show today. We are back talking about FVF and its origins, and how it grew up, and then right now, how we got into the COVID era. And with that, I will pass the mic.
0:01:25.3 MF: Thank you, Aaron. Thanks for having me back you guys. This is a really interesting topic because COVID hit when we were about to have… Or were in our sixth year. Is that right? It would’ve been our… We were five and a half years old.
0:01:52.3 JF: Yep.
0:01:53.9 MF: So from a startup perspective, we were just kind of hitting our peak as far as staffing goes. I think we were at probably the largest staff size that we had had to date. We were occupying the largest piece of real estate that we had to date. So on March 13th, 2019, we had what would be our last in-person staff meeting for a very long time. And so I just want us to kind of like sit back and think about initially, what was our response? What was our emotional response first? And then maybe we can talk a little bit about what our business response was.
0:02:53.6 JF: Yeah, I remember when it kind of hit me as being real, I showed up actually to the gym. I was a member of a gym, and I pulled up and parked the car, and I knew the world was shutting down around me, but it hadn’t really soaked in. Businesses were still operating. I showed up to my gym and it was just like, “You’re not welcome here.” I was like, “Huh, I guess this is really happening.” And I pulled out onto the highway, and I sort of looked around and I was like, huh, I’m kind of sort of the only car on the road here, and that’s really, really weird, and also unnerving because a lot of our business is car wrecks. And I was conflicted personally in that moment because I don’t like people getting hurt, but our business is helping people who have gotten hurt. And I sort of had a little bit of an existential crisis thinking, man, we might have to make a pretty strong pivot here if we wanna keep the momentum going with our organization. It was scary for me.
0:04:01.9 AF: Yeah. Just to be 100% clear, I think we all thought okay, if there’s no car wrecks, that’s a good thing for the world. Nobody was questioning that. But I remember quickly looking at, okay, we have interest in civil rights law. There’s other types of will disputes that we could get into, and definitely was thinking about all the people that we employ and how we can keep not just serving our clients, but serving our people who are working with us. And getting back to sort of the feel in the office. I remember we had one lawyer who had been reading sort of voraciously everything that was coming out at the time. And then some others of us, myself included, were kind of just sort of side eyeing it. It’s like, is this really gonna happen?
0:04:52.8 AF: Is this really coming here? Do we have to deal with this? And I think it was that lawyer who kind of stopped us as we went into our normal staffroom… Our normal conference room for staff meetings, and was like, “Hey, there’s this new term called social distancing, where I think we should be kind of spread out a little bit.” So that was like the first time I had really employed that term in my personal life. And we all like spread out into sort of the bullpen and had an office staff meeting from a little bit of a distance. And I remember feeling grateful that we had a team that was watching this better than I was, and that we needed to start to think about our priorities at the time. We all were worried about our families and our jobs, and it was a time of reflection for me. How about you, Margaret?
0:05:58.3 MF: Yeah. We quickly… So emotionally, same. It was I remember hundreds of thousands or I don’t know what the number is, but a ton of other families. The lockdown started right around spring break, so we were unravelling travel plans, which is such a privilege to be able to cancel a spring break trip. But we chose to… Even though travel bans were not starting, and the lockdown really doesn’t go into effect until the following week, we canceled our spring break plans. One, because of safety concerns and health concerns. We have aging parents and just wanted to do the right thing when we didn’t have a lot of information. But also the idea of being away from the organization. And something that we had taken for granted, which is that we’ve put ourselves in the position and built an organization where you could walk away at least at arm’s length from running the business for a week to go travel with your family.
0:07:19.8 MF: All of a sudden, it became really… It felt really important for us to physically be present with the staff and with the business. And so that was just the beginning of really tackling COVID logistics, which I’m sure there’s a lot of businesses that have talked ad nauseam about this topic, right? But for us, we had everybody in the office that Thursday and… Maybe it was Wednesday, but I think it was a Thursday, and basically sent everybody home after our all staff meeting. And really that office never reopened. So over the course of the next two… First, everyone went home for two weeks with their laptops, and we were very fortunate that we had positioned ourselves in a way that people were already working from home a little bit. We were dipping our toes in it, and people’s equipment was very portable. But everyone went home on that Thursday morning and we were gonna come back two weeks later, and as we all know, that didn’t happen. So what happens next is we all stay home for two weeks, we work remotely, we deal with our children for a prolonged spring break.
0:09:05.9 JF: I don’t think much work got done.
[chuckle]
0:09:07.2 MF: Right. By the way, I think our staff was really so good at keeping the wheels turning, right? And then after that two weeks was over and we realized we weren’t coming back, then the real work started.
0:09:27.6 JF: I think it was interesting because nobody… Everybody was so lost. It was such a new experience for everybody in the world at that time. And to look at that on a micro level at our organization specifically, I remember clearly I personally felt conflicted about what do we do here? Because kind of to your point, you are so used to working in this in-person environment, and you become convinced over just the years of doing it, of the routine, of showing up and being in an office with everyone, you just assume that that’s the only way that a legal practice can function. It’s how we were mentored, knocking on your neighbor’s door and going and talking to the person next to you about a case. And that’s how Aaron and I both came up and learned how to practice law.
0:10:25.9 JF: And I, for one, was really concerned about what’s the right decision here? Because you’ve got health and wellness as a paramount concern, of course, but then you’ve got keeping the doors open and being able to feed our families and help everybody in our team feed their families and keep the business alive. And I think, Margaret, you did a really great job of sort of taking the… We’ve sort of all had our roles and what we contributed to keeping the ship afloat, but I specifically… Like we deferred to you pretty well on what’s our policy gonna be? Are we gonna come into the office and close our doors and socially distance as best as you can like a lot of organizations were doing? Or are we gonna have this massive leap of faith and see what we were capable of as a team to continue moving forward and continue growing apart, not physically present with one another? And I think you did a great job of really keeping up with what was the CDC recommending, what were the guidelines, what were we supposed to do, what were the right decisions for the health and wellness of the team? And really taking it by the reins and establishing that protocol. And I personally found that very relieving because it took that burden off of me. And if we were gonna fail, then it was gonna be your fault.
[laughter]
0:11:54.7 AF: Yeah. And I think about the audience for this, and there’s gonna be maybe law students who wanna know about running a PI business, there might be lawyers who just wanna hone their practice and who knows? Maybe there’s some small business owners out there who are trying to learn a little bit how to be a mid-size small organization. And the lesson that I see in that first part of COVID was to keep your head and to look at the data. I think we’ve tried to be a data-driven organization from the beginning, but I think Margaret’s presence has really brought that into focus because it is a leap of faith until you start to get the data back and then it’s like, wait a second. Our team is actually thriving in some ways. Now, there’s some other ways where we had to come up with solutions and we’re gonna talk about those.
0:13:04.2 AF: But, Margaret, I think correctly went to, all right, let’s set some rails on this and let’s let it go down the track, and then let’s get the feedback, and let’s make adjustments as we go. And it was just a very logical path forward for us, and I think any business could learn from that.
0:13:24.4 MF: Like with anything that we do, we used a values driven model, and so what do our values tell us we’re supposed to do in this time? So we educated ourselves and we educated our staff. We were transparent in what we were doing and why we were doing it. We were compassionate with both the issues that our clients may be having, but with the realities of the stressors that are inflicted upon families in this important time. And so allowing folks to show up in the way they needed to in that time while still maintaining a fierce level of advocacy for the practice that we are committed to. And so I think when you talk about what are key takeaways that others could use in that time is if you have… You will know your values are pointed in the right direction when you can always look back to them and say, “Okay, what do we do now? What is the next best step? Well, what do our values tell us we are supposed to do?”
0:14:56.5 MF: So I think that that’s… While the logistics might have fallen to me, the actual execution of how we maneuvered through that time, that standard was set by you guys at the birth of the law firm when we were establishing what those values were that we were going to build everything on top of. And then it was executed by the leadership team and the staff. And so one of the reasons why we were able to maintain a level of success through COVID and continue to utilize some of the practices that we found to be beneficial to us and our team during the time of COVID is because we had the right people in place that believed in and could embody those values that make this machine move forward.
0:16:03.9 JF: I wanna look back and kinda talk about some of the practical things. I know you really led the charge on restructuring the organization and keeping people moving forward in a positive direction. Talk about some of the steps that you remember taking to make sure that the train was kept on the tracks during that time.
0:16:32.9 MF: So I think the first step was making sure that people had the tools they needed to do their jobs at home. So do they have the right internet speed? Do they have the right computer equipment? Everyone came and brought home their standing desks. We had office chairs delivered to people’s houses. And that sounds like small things or maybe not super important things, but for a team to know that we will provide them with all the tools they needed, multiple screens, everything they need to do their job, we will deliver to them. So we are gonna show up in their space and make sure that whatever space they have dedicated in their home functions like a normal office and if they needed help getting that set up, we would provide that assistance.
0:17:43.4 MF: And so we felt that it was important that we take on that burden for them because, again, people were going through a lot at that time. The other thing, I think, we did from a logistics perspective, and I can’t recall if this was already in place pre-COVID, I think that it was I believe we had already established what we referred to as a pod system inside of our organization. So we are not very big and so we don’t have departments. The normal organizational structure that exist in larger firms or companies with levels of hierarchy, and managers, and supervisors, and team leads, and all of that does not exist in our firm. One, because we’re just not a big organization, and two, we’ve always really believed in having a very flat organization that there aren’t levels of importance or hierarchy or reporting structures. And so we had established what we referred to as a pod system, and that brought groups of people together to work as a team without necessarily having leadership or management.
0:19:15.0 MF: But there were mentors or partners engaged that could provide education and that type of thing to our pods. So the way… What that looks like in COVID is that we already had these small teams constructed that could support each other, both in their practice and in their personal life as we moved away from a traditional in-office setting where there was a lot of door knocking and office visits and that kind of thing. And Aaron had a really good idea at the beginning of COVID to bring those folks together on a regular basis.
0:20:02.7 AF: I stole that idea.
0:20:05.1 MF: Would you like to tell the people the idea that you stole?
0:20:07.0 AF: It was to have stand-ups, which when I say that phrase, there might be people that just cringe because that just evokes the sort of peak corporate response to COVID in terms of like how do we somehow get people to stay socialized? We know we can get them to work from home, but how do we get them to still know each other, like each other, stay… Motivate each other, educate each other? And the response was stand-ups. And I think that became so prevalent during the pandemic that there was sort of I guess a counter response where people kind of resented having to go to these stand-ups. But in the beginning, they were saviors. We needed the ability to connect with each other.
0:20:07.0 AF: And before we ever heard about Zoom fatigue and being in front of your laptop and meeting with people all day, before we heard of that, we had this video conference option. I think it started with Slack, and maybe we use Zoom a little bit if it got too big. And we tried to get, I think it was all the lawyers together, all the paralegals together, the leadership team together. At one time, we were trying to get everybody together, and that was unwieldy. But the bottom line was we were able to bring people together and have a moment that ostensibly was about work, but in practice was just about them talking to each other, having coffee with each other. What challenges are you… I think that the questions were sort of like, what’d you do yesterday? And what are you trying to get done today? And embedded in that was, what were your challenges yesterday and what are your challenges today? So we could kind of support each other.
0:22:02.5 JF: So for those of y’all who don’t know what a stand-up is, I mean, we were just literally getting together every day on a video conference call to just check in with each other. And as I kind of look back on what that time was like, I mean, there was so much that was going on in the background. I can’t even comment on the amount of work that was in. Like I just… A desk just showed up at my house. [laughter] That was incredible.
0:22:35.2 MF: Because I am magic.
[laughter]
0:22:36.9 JF: Stuff like that would just happen. But the stand-ups, I mean, there was a lot of fear, right? We were afraid for our health, we were afraid for our safety, we were afraid for our economic well-being. We’re watching these… I remember very clearly like that video that came out of Italy where they were… Everyone, all these Italians were talking to the rest of the world about how real and serious and terrible what we were about to get hit with was. And I felt like those stand-ups just getting together and talking, it wasn’t even about work. It was just, how are you, what are you doing? How are you managing? What’s new? What’s this transition like for you? What questions do you have? How can we help? And I felt like that was like… We went… We really went through COVID together in that way. Even though we weren’t together face-to-face, we were together allaying each other’s fears and telling each other that it was gonna be okay, that we were gonna get through it together. And it really demonstrated our commitment to support of the team. And I thought that was probably one of the most impactful things that we did during COVID to help make that transition work.
0:24:02.3 AF: How are you washing your apples?
[laughter]
0:24:06.5 MF: Yeah.
0:24:08.5 AF: Right?
0:24:08.5 MF: Yeah. So after we get through those first probably 30 days, then the reality sets in that we’ve got to figure out how we are going to assist our clients in navigating their cases through the system when the system has just absolutely changed, right? The court systems are shut down, non-essential medical procedures and doctor offices are shut down. All the things that are required for the progression of the lifespan of a personal injury case to go from open to close have really been flipped upside down. So can you all talk to us about, first, what did that look like? And then second, how did we counsel our clients through that very challenging time and uncertain time?
0:25:19.7 AF: Yes. So two of the main ingredients of a personal injury case are documentation, which is the medical process. Someone going to get medical visits and a doctor discovering what’s wrong with them and writing it down and an endpoint, some threat to the insurance company that if they don’t figure this out, we’re gonna go to trial and get the answer from a jury. So we kind of were robbed of both of those in the beginning. The courts completely shut down. There were no trial dates that anyone could rely on. In those first few days, you couldn’t even have a hearing to compel the documents that you need from defense. And they, of course, were just kind of laying back, not doing anything.
0:25:19.7 AF: And then the medical offices pretty reliably, they could be relied on to figure out a solution. Doctors have been doing that since the dawn of time, and so they… I think they quickly scrambled and figured out that telemedicine was an option. And we of course were keeping our ear to the ground on that and finding out which medical offices were the most agile in that process of actually getting a reliable way to get in front of a doctor and then to turn that into a procedure that whether it’s diagnostic or what. So I think in the early days, it was just sort of a lot of observation and meeting with other lawyers online to figure out what they were doing, and then watching our court system unfold.
0:26:55.0 JF: Yeah, I think you had to have some really hard conversations with people who were really wanting to have their case come to a conclusion. And there were a lot of people whose cases had ripened at that time. They were ready to be completed and brought across the finish line, maybe had trial dates set, and then all of a sudden we can’t have trials anymore. And there was a big period of time where Zoom trials, I mean, it took them a while in…
0:27:23.7 MF: Over a year. Like a long time.
0:27:26.0 AF: And our law school, or my law school classmate was the first judge in the nation to host a virtual trial. It was of a criminal trial here in Austin, but that was national news and it took him forever to put that together. It was ton of work for the court staff. It seems kind of like, “Oh, it’s just a meeting online,” but if you’ve ever been to court, you know there are security protocols, there are logistical issues in preserving evidence and making sure the appellate record is clear, there’s issues with the court reporter being able to read people’s lips and take down all the information, there’s issues with exhibits being marked up in real-time or being preserved. And so figuring all that out was no small task for the courts. We are fortunate to be practicing in Austin, Texas where the Travis County judges, the district judges and the county court judges got together and pretty aggressively pursued solutions for virtual hearings, virtual trials and so forth.
0:28:35.5 JF: Yeah, for sure. Kudos to the entire Travis County system for putting it together. But it still took a while and we still… I mean, it couldn’t have been shorter. I mean, it just… It was a complete upending of a system that has been in place for hundreds of years basically.
0:28:53.3 AF: Right.
0:28:54.0 JF: And retooling of that system. So you had to have a lot of difficult conversation with clients just saying, “Listen, we’ve got your case ready for trial, and that’s the light at the end of the tunnel for you. And now your right to a jury trial has been suspended. It is postponed for some period of time, and we don’t know when that’s gonna end.” But I kind of feel like at the end of the day, we were really concerned about, well, how is this going to slow down or stop our cases from being able to be brought across the finish line? And it seems to me like the entire bar, the defense bar too stepped up to really work cohesively to not allow a gigantic backlog of cases to develop. They continued to move cases forward.
0:28:54.0 JF: I think the insurance defense lawyers also saw that, “Hey, if we don’t work on getting some of these cases resolved, we’re gonna have stacks and stacks and stacks of cases that we’re never gonna be able to get through, and we’ll never be able to keep up with the litigation.” And so the system sort of worked itself out. But it was definitely challenging for a while to help navigate our clients through that uncertain time, other than to let them know, “Listen, we’re gonna keep pushing your case forward as aggressively as we can and keep the temperature up on your case as aggressively as we can with video depositions and things of that nature until we can put enough pressure on the insurance companies to get these cases completed.” And I think ultimately we did a really, really good job at that.
0:30:42.5 AF: I Agree. It was almost surprising that the insurance companies and the defense lawyers did not completely just hit the brakes and do everything they could to lay behind the log and say, COVID and not do anything. I think there is a sort of regulatory twist of fate there in the background that worked in our favor, and that is that the government requires insurance companies to hold about 50% of their reserves in cash. And by reserves, what I mean is the amount of money on each claim that they have set aside as their best guess for the ultimate settlement or judgment on that claim. And what that does is siphon a ton of cash that is investable for the insurance company into this sort of checking account. And they are pretty motivated to get that money out the door and get their books. If they settle a case for under their reserves, their books actually get healthier, their investment portfolio gets healthier. And so because of that sort of weird regulation, the insurance companies had a little bit more incentive than they otherwise would to just hold all their money and hoard the money like a dragon. They were more like, “All right, we gotta figure this out.” And so they… At a minimum, they were not resisting the changes that were being put in place.
0:32:12.9 MF: Yeah.
0:32:13.9 AF: Especially… And the Texas Supreme Court, of course, was coming out with emergency orders constantly to help guide the courts.
0:32:22.0 MF: Well, this has been really interesting, and I think we would all agree that there were some initial reactions to COVID and impacts on our business. And now that we are several years past that first shutdown, there’ve been some long lasting impacts and just like they are to change us. The way we practice is different, the way the court system can function is different. So I’m excited to continue this conversation in a later episode and talk more about what those… What our practice looks like today post-COVID if we can ever live in an actual post-COVID world. So thanks, guys.
0:33:10.4 JF: Thank you. And thanks for listening in.
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