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Three legal siblings offer their take on the pandemic crisis

By Tom Kirvan
Legal News

When historians, especially those with a legal bent, write about the 2020 pandemic, they would be wise to talk with three members of one of the state’s most prominent legal families – the Vivianos.

The views of David, Kathy, and Joe Viviano would offer a decidedly interesting mix of perspectives on how dramatically legal lives have changed since the coronavirus began sweeping through Michigan in mid-March.

In respective order they embody a state Supreme Court justice, a Macomb County Circuit Court judge, and a partner in a law firm that specializes in litigation work. Each, in myriad ways, has felt the impact of the pandemic.

Joe Viviano, as a partner with Kienbaum Hardy Viviano Pelton & Forrest, was forced to change his focus to the operational side of the Birmingham firm that employs 17 attorneys and 11 staff members.

“Like probably 95 percent of the law firms in the state, we have applied for the Paycheck Protection Program (PPP) that was rolled out as part of the federal stimulus package,” Viviano said. “That process has been a roller coaster.”

“The uncertainty has made this a very challenging business environment. We don’t know how long this is going to last or what the practice of law will look like on the other side.” 

The economic fallout has taken a worrisome toll on litigation firms in particular, Viviano indicated.

“With the courts closed, it’s delayed most trial proceedings,” Viviano explained. “Courtroom work obviously is a big part of our operation and that has been largely put on hold.”

Viviano has spent the past few weeks working from home, which has presented its own set of challenges for the father of four children, ranging in age from 6 to 15.

“It’s one thing to work from home when the kids are in school and it’s an altogether different thing to work here when they are ever-present,” Viviano said. “I have seen the need to have a ‘floating office” around the house in order to get things done. Whatever room I’m in seems to be a magnet for my kids.”

Judge Kathy Viviano, a member of the Macomb County Circuit Court since 2010, is six years older than her brother Joe, with whom she practiced law in Mount Clemens before joining the bench.

“We took the LSAT and the bar exam together,” she said. “Those, of course, are two pretty big days in the life of an aspiring lawyer, and it was comforting to share those with my brother.”

The siblings talk regularly, perhaps even more so during the course of the pandemic.

“I’ve always made a point of staying in touch with my siblings, but I think it’s more imperative now with the health crisis we are in the midst of,” Judge Viviano said. “We also very conscious of the welfare of our parents, who are isolated in their home for their safety since they are elderly.”

Like her brothers, Viviano earned her bachelor’s degree from Hillsdale College and said she knew “early on” that she was destined for a career in the law, particularly in a public service capacity.

She currently is a member of a statewide task force created to accelerate the use of “virtual courtrooms,” which could become the “new normal” depending on the length of the coronavirus crisis.

“The (Michigan) Supreme Court is doing a great job in getting out in front of the challenges all the courts are facing during the pandemic, exploring the best ways to utilize technology to keep the judicial system operating at maximum efficiency. It’s been gratifying to see how many people from different backgrounds in the court system are working cooperatively to find solutions to problems that have cropped up.”

Some of those challenges are magnified by the varying levels of technical skill that litigants possess, according to Judge Viviano.

“Practically, we have to acknowledge that not everyone has a sophisticated understanding of technology and how best to use it,” Viviano noted. “One litigant on a Zoom conference may be very skilled and familiar with the technology, but another may be a novice. The computer hardware and software that they possess also could be far different. We have to allow for all that when conducting a court proceeding to ensure due process.”

On the brighter side, Viviano believes that the pandemic has produced some positive news over the past two months.

“It has definitely quickened the pace of offering and delivering remote services throughout the court system, which has the potential to allow greater access and a lower cost,” she said. “Those are two goals that we all desire.”

Teleconferencing also has featured an occasional lighter side, Viviano said with a smile.

“Working remotely has its advantages in terms of not having to dress up for the office, but I’ve had to remind some litigants that wearing a baseball cap is not acceptable when in a virtual courtroom.”

Since the stay-at-home order was enacted in mid-March, Viviano spends one week per month at the Macomb County Circuit Court in Mount Clemens, handling multiple dockets in an effort to reduce the number of workers in the court building.

“We’re working that way on a rotating basis so we help minimize potential exposure to the virus,” she said. “So far, the plan has worked out well and is indicative of the team approach that everyone has embraced during the pandemic.”

When he joined the Michigan Supreme Court in 2013, Justice David Viviano was praised by then Governor Rick Snyder for a “track record of innovation,” particularly in the areas of technology initiatives and jury system reforms.

Yet, even with those smarts, Justice Viviano has discovered that working from home presents unique challenges.

“I just finished a call with the Chief Justice (Bridget McCormack), while my wife was busy teaching our four kids from home,” said Viviano.

“There is a lot going on at the same time around the house, and that can be difficult when there is a need to stay focused.

“As justices, we’re dealing with a number of very complex cases that require moving from one area of the law to another in sometimes rapid succession. Those kind of cases demand special concentration without interruption, which isn’t always possible in a home setting.”

Still, he said the state’s high court has made a “very smooth transition” to conducting “our business electronically and through video conferencing” programs.

“We’ve heard two different oral arguments by Zoom and have conducted our official conferences by that technology as well, along with the internal conferences with our staff,” Viviano said.

In addition, the Supreme Court has been busy promulgating rules for trial courts to follow as they make the transition to virtual courtroom operations, he said.

“Down the road, one of the key questions we’re dealing with is how we are going to conduct jury trials remotely,” Viviano said. “We will probably have to break down the trial process into components – voir dire, the actual trial, jury instructions, and jury deliberations. There are a lot of moving parts to consider.”

Not the least of which are cost and equal accessibility, he noted.

“There obviously are resource limitations in that not every juror has access to a computer or an Internet connection,” Viviano explained. “We also have to consider how we can best facilitate interaction between jurors.”

Viviano, who has been twice re-elected to the Supreme Court, won a seat on the Macomb County Circuit Court in 2006. The victory was one for the judicial history books as well, ensuring that a father and son would serve together on the Macomb County Circuit Court for the first time. Viviano’s father, Antonio (Tony), was chief judge of the court after first being elected to the bench as a probate judge in 1992. The elder Viviano, a voracious reader, earned a reputation as a student of the law, a legal trait he passed on to his son.

Viviano and his wife, Neran, have four children, ranging in age from 4 to 10. Their kids also are feeling the pain of the pandemic, he said. But a daily side benefit, however, an opportunity to Face Time with their grandmother, Alice Viviano.

“One of the bright spots out of all this has been the time that my mom gets to spend with our kids each day, listening to them read to her,” Viviano said. “She loves it and they really look forward to the contact with their grandmother. It’s a win-win.”

Even in a pandemic.

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