By Daniel Siegal

Law360 (May 11, 2020, 5:58 PM EDT) -- Faith Gay can speak from personal experience when she says the coronavirus pandemic will change how attorneys think. After overcoming the "brutal" illness, the Selendy & Gay PLLC founding partner is highlighting the importance of pro bono work to ameliorate the crisis.

Gay has been lead counsel in over 30 jury trials and co-led Quinn Emanuel Urquhart & Sullivan LLP's national trial practice before leaving the firm with several other partners to found Selendy & Gay in early 2018.

A former federal prosecutor in the U.S. Attorney's Office for the Eastern District of New York, Gay's experience with the criminal justice system came up during a 30-minute interview earlier this month.

She said the pandemic is opening attorneys' and judges' eyes to how remote access to the courts is more than just a matter of convenience, and discussed how prosecutors and courts will handle the backlog of matters building up during court closures.

She also talked about her own bout with COVID-19, the disease caused by the coronavirus, and why pro bono work to address the pandemic is a priority for her and her firm.

This interview has been edited for length and clarity.

How has the pandemic impacted your practice?

We had three trials on the docket between now and September — one in Delaware, one in Texas and one in the Southern District of New York. The Texas trial, in which we're sort of mid-trial, is a bankruptcy case.

I think if we hadn't already started that trial, we certainly would have experimented with doing the whole thing by Zoom. It certainly would have been a possibility.

The [Zoom] court conferences so far have gone very well; I think people have been happy with them. And I do think it will help us, as litigators, reevaluate using technology in the future.

You think about the resources that are expended by people who may not have extra resources to get to court. Like for a bail signing or someone who has to come into family court just to make sure certain papers are set in place. I think this has opened all of our eyes that access to justice in certain situations would be enhanced by Zoom, Join.Me and other virtual features.

Given the danger posed by travel, I think we will all be reevaluating when we have to travel, when we have to be away from our families and what tech can do for us.

What have you learned from using Zoom and other remote technologies so far?

I've been pleasantly surprised as to how smooth it's been, how helpful it's been.

[Selendy & Gay is] relatively young, two years old. We had everything, all our technology set up to go into the cloud. We went remote even before the governor required us to do so, just out of concerns for the health of our staff. And we haven't had hitches.

Of course we miss each other, and of course the idea of thought development in community is part of what law firms do. When people trust us with their biggest problems, it's not a situation where we're going to have a cookie-cutter answer for the client. Communication and debate is a really important piece of advancing the ball for the client, and so we've been able to do it pretty well [by Zoom], but it's not quite the same as in-person discussion.

With your experience handling both civil and criminal matters, how do you see courts sorting out their trial calendars when things resume?

When a person's liberty is at issue, that has to come first. In triaging these matters, I think you're going to see it's not just going to be left on the shoulders of the courts. I think you'll see prosecutor's offices and you'll see private litigants dealing in a way that adopts self-help in sequencing which cases matter most when the courts reopen.

State and federal prosecutors, I know this for a fact already, are thinking, "How do we use the limited resources that are available to us if we're stuck not going back to court for several months?"

Their approach to what they prioritize, what sort of plea deals they want to enter into, they also will take into account a heightened concern for human health. I think you'll see some adjustment there that's not just asking the courts to work 40 hours a day when the doors open again.

And I think the same thing will be true for the civil docket; I think you will see that certain case resolutions just can't wait for the pandemic, and the parties will be more inclined to find some resolution, which may mean taking a discount off the dollars in ways they never would have considered before.

What are you doing with the extra time on cases that have been delayed for trial?

I don't know that we are experiencing it as "extra time" so much. Certainly when trials are delayed, sometimes all that happens is that the clients end up paying more money, because things end up getting done and redone.

We have worked hard over the years to make sure that whenever we put our pencils down, we have aggregated all the knowledge we have in one place so we don't have to reinvent the wheel.

We have been very aggressive, consistent with the courts' priorities … of keeping the trials on the docket, rolling them forward and looking at where we can get our evidence and witnesses from, can we make some adjustments here and there.

Also, there are obviously some really pressing pro bono needs associated with the crisis, and we've been very active in that way.

What sort of pro bono work is the firm doing?

We've been involved in litigation to try to help those who are incarcerated in facilities for one reason or another and who are in the at-risk categories with the pandemic to find conditions of release. And we've been doing that on individual cases and in class actions.

And I will also say that we had been involved on behalf of the [American Federation of Teachers], the teachers union, in cases involving public service loan forgiveness and student debt. I am not able to comment on the specifics of those cases, but we have been thinking hard about public policy and litigation solutions to help students stay in school, get back in school [and help them avoid concluding] that they've lost a year of their lives, are drowning in debt and give up.

We are profoundly aware that the crisis is affecting everyone differently, and a lot of that is sorted out along race and class [lines]. I mean, there are middle- and upper-class folks who have been lucky enough not to get sick or have recovered from sickness, and are having this great moment where they're actually enjoying time with their families, they're not having to run to a plane every second. On the other hand, for many people it's just been an unmitigated disaster, as you know.

So when we think about how to spend our pro bono time and dollars, we are thinking about those who are most affected.

What are the opportunities and pressures of being a founder of a newer firm during this crisis?

One of the things that's nice for us is we were very careful when we founded the firm to staff up a C-Suite with a CFO and other positions, chief information officer, etc., so we as lawyers have been left with the actual practice of law and the management of the actual practice of law.

So that infrastructure helped us by having designed all of our systems from the get-go to function in the cloud. So we had no trouble working remotely.

What's your remote office set-up like?

We are in Cooperstown, New York, where we have had a place for a long time. My wife runs the Glimmerglass festival, which is the summer opera festival here. And it, like the rest of the arts world, is completely devastated.

My son, who's in the fifth grade, is going to school remotely. And sometimes that works, and sometimes it leaves a lot to be desired. It certainly requires much more parental involvement than previously experienced. But I'm enjoying that opportunity.

We sort of have three adjoining offices next to each other; we try not to suck up too much bandwidth.

We're really grateful that we can go outside in the yard and play with the dog, and count our blessings every day that we can experience that.

What kind of dog?

A very large lab. Not a rocket scientist, but a good dog.

You yourself have gotten sick during the pandemic?

I had the virus, recovered from it — and it was a nasty experience, to say the least. I've never been so sick in my life.

I'm sure I had it. And I'm sure my wife Francesca had it. I will say I did not test positive, but my doctor had no doubt. I was tested once and did not get tested again because there is, as you know, a testing shortage.

So once I became asymptomatic, we just went two weeks without having contact with anybody. And I self-isolated in the house.

I got it, I think, in late March, and I'm sure I got it in the city [Manhattan], because by that time I had stopped traveling.

And it was pretty brutal. I had to go into the hospital a couple of times, but I was never in the ICU. But it was a scary experience, and it has been something we have been really committed to making sure we don't spread to anybody else.

--Editing by Philip Shea.

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