Exploring Growing Areas of Law

Vol. 41 No. 6

By

Janan Hanna is a Chicago freelance writer and an adjunct instructor at Northwestern University’s Medill School of Journalism. A former staff writer for the Chicago Tribune, she has also written for numerous other news organizations, including Reuters, the Chicago News Cooperative, the Huffington Post and the Chicago Daily Law Bulletin.

Building on Student Lawyer’s article about hot practice areas (February 2012), this year we examine three areas of law that are starting to grow because of changing demographics, health care reform, and a poor economy. While major change is often scary, if you step back and look at how some experienced attorneys have adapted and applied their law school training to help others navigate change, you will see that a major key to their success is knowing how to solve problems.

Fact #1: The population of Americans who are getting older and living longer is growing dramatically. As lawyers try to make sense of all the issues related to elder law, they need a keen sense of the broad policy issues, an up-to-date understanding of all the regulations of their state and the federal laws, and a patient understanding of the unique needs and desires of their client.

Fact #2: Insurance law, particularly as it relates to health care, and some areas of real estate law, is also keeping lawyers busy. So for those interested not in litigation, but as veteran Washington, D.C., insurance attorney Lawrence H. Mirel says, “a let’s-try-to-work-it-out approach to law,” these practice areas can give lawyers an opportunity to make a real difference in people’s lives and provide some intellectual stimulation.

Fact #3: Real estate sales attorneys were hit hard during the economic downturn, but foreclosure work, particularly for banks, provides some opportunities for young lawyers today, says Steven B. Bashaw, a Chicago-area attorney who has done plaintiff’s and defense work for 36 years. New lawyers could quickly get in-court experience and will learn about loan priorities and the rules of civil procedure by doing foreclosure work, Bashaw says. Representing home buyers and sellers is making a slow comeback, too, said Joseph R. Fortunato Jr., also a Chicago-area real estate attorney. If you’re “more collaborative,” he says, transactional work would fit your personality because your job is to facilitate—to help someone buy a home.

Elder Law: Includes More Than You Might Think

Before James Barnes started law school, he got a valuable piece of advice from a respected large firm lawyer that stuck with him as he angled for good internships and tried to map out his future: “Learn how to work with people and solve their problems,” Barnes recalls.

The advice couldn’t be more relevant for the practice area Barnes concentrates in today. An elder law attorney at Burke & Casserly, P.C. in Albany, New York, Barnes, a shareholder at the firm, relies on his people skills as much as his legal skills to help families navigate a growing maze of estate, health care, financial, and other issues that are important to the fastest growing segment of the US population. He cannot do it with a dry understanding of regulatory schemes like Medicare, Medicaid, trusts and estates law alone, although he certainly must keep up to date on all relevant federal and state legislation. He has to develop a special relationship with the elderly client and family members caring for the client and patiently guide everyone toward an understanding of the legal realities and their best options.

“It takes a very special personality to be in elder law,” says JulieAnn Calareso, a shareholder at Burke & Casserly, who practices with Barnes. “You are not just sitting there and reading the rules of evidence. You are applying some very detailed rules in an emotional and crisis-filled situation.” This can get particularly tricky, Calareso explains, when you have family members who live in different states than the client (some states have different regulations, for example on Medicaid, which is a combined federal/state program), or who think that because their neighbor’s insurance policy covered a certain amount of home health care or nursing home care, that’s what their loved one will be entitled to.

The labyrinth of constantly changing Medicare and Medicaid regulations is perhaps the most significant issue in elder law today, affecting almost every income bracket, although the very wealthy might be less touched. Calareso explains that everything from deciding whether a client will get to stay at home with medical help, or move to an assisted living center depends on these regulations.

There are also questions about long-term-care private insurance policies, which are extraordinarily expensive both for the insured and the insurer.

“It’s a slow move toward [dealing] with this population,” Barnes says. “Part of the solution over time has been for people to say ‘we’ve got this issue that people are either paying at a high level, or they’re relying on government benefits.’ What’s the alternative? In some cases, it can be insurance. But we’re seeing changes in that insurance.” Insurance is expensive. Either people don’t look into it. Or they hit an age where they’re not insurable, Barnes explains. And some insurance companies, looking at the staggering cost of claims, do not want to continue to write these policies.

The elder law field is relatively young, having taken shape as separate practice area about 25 years ago, Calareso and Barnes say. So there are opportunities here for new lawyers.

“We spend a lot of time educating,” Calareso says. “When we educate, it’s a very practical education. We don’t sit in a conference room and quote statutes. We give people the very human and practical synopsis of the rules and the law as they apply to their situation.”

Sometimes, clients are completely off base in what they think their public or private insurance, or their own bank accounts, will allow them to do, Calareso explains. “We have to listen, appreciate what they’re saying, show them deference, and turn the conversation another way. It’s a different approach than our colleagues will take, if they’re in litigation” or handling a business deal.

Elder law attorneys may need to handle a matter at hospital bedsides, Calareso says. Or handle a matter related to HIPAA, or correct bad information a client got from a doctor or another lawyer, or deal with a landlord/tenant matter. There is no shortage of the number of areas of law that elder lawyers may confront.

Calareso, treasurer of the New York State Bar Association’s Elder Law Section, knew she wanted to practice elder law while still in law school. She watched her parents and an aunt and uncle deal with their aging parents—her maternal grandmother lived with Alzheimer’s disease for nine years—and was affected emotionally by the struggles that it entailed. “It was an educational and eye-opening experience,” she says.

 Looking at firms in the close-knit Albany legal community, she applied only to those that would allow her to practice in the area of trusts and estates—the related area of elder law. For Barnes, his interest was a bit more general. He began his career at Casserly, joining the firm in 2005.

“I knew I was really looking to work with people. I did not want to sit in the back room of a library writing briefs for a partner three levels up,” he says. “It was clear to me very early on that I was going to be working with families.” The close, intimate contact with clients “ignited” his desire to practice elder law ever since he experienced it, he says.

The entrée into an elder law practice is trust and estate law, Barnes and Calareso say. A holistic approach to retirement and long-term care issues is often needed, with consideration to succession of estate questions. “You will not find an elder law attorney who cannot do trust and estates work,” Calareso says.

She advises law students to take related courses and join clinics if their schools have ones in either estate or tax law (tax law is helpful, although you needn’t be an expert) and to join student divisions of bar association sections in these areas. Working with regulations is something you must enjoy, but know that you’re not going to be hammering out a compromise in a typical business fashion with opposing counsel or a necessarily business-savvy client.

Insurance Regulation: Drafting Policies and Advising Clients

For every lawyer like Barnes and Calareso who are wading through rules to determine whether mom or grandma has coverage for a nursing home, there are dozens and dozens more who are either writing the applicable government regulations or drafting the private insurance policies that must comply with them. Mirel, a partner at the Washington, D.C., firm of Wiley Rein, LLP, who spent much of his career on the government side, now advises insurance-company clients on regulatory matters.

In a November interview just two days after President Obama was reelected, Mirel talked about the important roles lawyers would have in and out of government helping states, health providers, and insurers interpret various provisions of the Patient Protection and Affordable Care Act (ACA)—a role that could provide jobs for new lawyers.

There will be new state health insurance exchanges, from which individuals will be able to buy insurance that meets certain federal guidelines, presumably at competitive prices. States that haven’t already done so need to establish the health insurance exchanges in early 2013.

Private insurers will still be writing the policies for individuals who buy insurance through state exchanges or through their employers, and they need to continue to parse the ACA, says Mirel, who was commissioner of Insurance, Securities and Banking for the District of Columbia before joining Wiley.

Small to mid-sized employers need to understand the law to determine whether to continue to provide insurance coverage to their workers the way they already do, or to give their employees a subsidy to buy insurance individually through their state’s health insurance exchange program.

And lawyers for the federal government will be fielding questions and themselves interpreting provisions of the ACA as it applies to different situations. “There are many opportunities for lawyers in state and federal government to help write the rules, help enforce the rules to help interpret what the statute says and to write regulations,” Mirel says. “These are all lawyer-heavy activities and they’re great fun. The policy implications are terrific.”

Of course, there are going to be problems and “problems are good for lawyers,” Mirel says. One company asked Mirel whether its travel insurance policy—one that covers illnesses that occur while traveling outside the country—is subject to the ACA. Mirel says he called the government and no one knew. “The question hadn’t come up before,” Mirel says. “That’s the kind of stuff that is going to get worked out over the next few years.”

Mirel advises new attorneys interested in insurance or regulatory law to begin their careers in government where they will get a firm command of the broad policy questions and the nitty-gritty regulatory schemes in any number of industries, including the financial industry. Afterward, attorneys will be of great value to private-sector clients if they’re interested in making the switch.

In addition to government experience, young lawyers who impress him most are those who had related experience before they got to law school. “When I read résumés of lawyers looking for jobs, I always look to see what else they’ve done. Usually that’s more interesting than their law school career,” Mirel says, noting that he worked with a young associate who purchased insurance policies for a large construction company prior to attending law school. “That kind of practical experience is invaluable to me.”

A good head for technical issues and an interest in policy are good characteristics for an individual pursuing this area, he says. “Insurance impacts a lot of important policy decisions for society. It has more intellectual content than many areas of the law. If you’re a policy wonk, it is a good place to be because the issues are so fraught with fundamental questions about how we want our society to look,” Mirel says. “Should we require people to buy health insurance? What happens if we don’t? These kinds of questions are so interesting and they never have a [single] answer, just a better and worse one. And making these arguments one way or another is what lawyers do well. It’s much more fun than litigation. Litigation is the failure of quick government. You should be able to make rules that solve things.”

“I don’t like a winner-takes-all-approach. I much prefer the ‘let’s-try-to-work-it-out approach.’”

Real Estate Law: Opportunities Abound

You’ll forgive Bashaw his hyperbole when he says the real estate world has “evolved a million times” since he began practicing 36 years ago, prompted by his fascination with his real estate law courses and his work at a firm that did foreclosures.

He has represented mortgage companies and banks, private homeowners, and commercial landowners; he has worked at a big firm, a small firm, and  at his own firm. But it’s in his telling of the story about his first home purchase that you’ll understand, in a perverse way, why there are opportunities for lawyers today in the foreclosure crisis.

He got his mortgage from an acquaintance in his neighborhood—a lending officer at a local branch of a Chicago-based savings and loan company. He closed his loan with that same officer, a woman he’d known from neighborhood block parties. When he had questions or thought he might be late with a payment after he had his first child, he visited the same loan officer.

“Today, there are five or six people doing her job,” Bashaw says. “There’s the mortgage broker, who completes the loan application. There’s the loan underwriter, who checks employment and analyzes risk, and a document preparation specialist and then someone who closes the loan and a portfolio manager” who sells the loan as a mortgage-backed security. Then, it’s transferred to someone who services and collects the loan.

Many of the loans that are being foreclosed these days, and that have been foreclosed in the last few years, have essentially been lost. And lawyers, for both the mortgagor and mortgagee, are needed to find them.

“The first thing [a plaintiff’s lawyer] does is make a motion for lack of standing because you can’t tell who holds the mortgage or the note,” Bashaw says. “That’s what all this is about. My mortgage would’ve been foreclosed easily. It would’ve been Talman Home Federal Savings and Loan.” And more than likely, that same woman, the loan officer who sold him the loan and monitored his payments, would have provided the materials needed in court to support any such action against Bashaw.

Bashaw knows that people think he’s old-fashioned; that his ideas of accountability are quaint and provincial. Go figure. And he laughs when he’s reminded that perhaps lending professionals figured out what lawyers have long known; that there’s money to be made by generating endless trails of paperwork.

Although lawyers have taken a hit in this practice area generally because of the sales slump, for someone just starting out in law who is interested in real estate practice, there are some opportunities in the foreclosure area, Bashaw says. Lenders tend to refer these cases to a handful of firms for a flat rate per case, so they make their money on volume, Bashaw says. On the plaintiff’s side, typically, there’s not much money. The client is defaulting and the amount of legwork is time consuming.

With pressure mounting to get foreclosed property back on the market, lawyers for lenders are busy. And a new lawyer who can get a job doing foreclosure defense work will likely get in-court experience right away, learning the rules of civil procedure and the rules that govern loan priorities. (All foreclosures in Illinois and in about half the states in the country must be approved by a judge.)

“It’s a good practice for young lawyers because it’s a good way to learn how to think if you want to be a trial attorney,” Bashaw says. “You’re learning the code of civil procedure by getting hit over the head with it. You get to be in front of the court, you do some trials here and there, you get to learn the concept of priorities of rights in real estate. That can be a good stepping stone; a good foundation.”

Bashaw clerked for a firm that handled foreclosures when he was in school and was offered a job when he graduated.

So You Want to Litigate? Get Techy

Electronic discovery, or e-discovery, is a bit of a buzz phrase essentially recognizing that most information related to complex litigation these days is stored, turned over, and searched electronically. How much of it is relevant in a court contest? How much of it must be turned over? How can it be searched? How do litigants deal with privileged information? These are questions that lawyers and judges are grappling with in an effort to keep costs down. Discovery is one of the most expensive parts of litigation.

In 2006, the Federal Rules of Civil Procedure, specifically Rules 26 and 34, were amended to address the financial quagmire that discovery has become. The rules mandate that attorneys have a conference and that judges oversee discovery questions on a case-by-case basis. This was an important milestone in the recent history of discovery, which seemed to have no limits.

“There is an ocean of documents out there. How much water do you have to draw out?” says Ian H. Fisher, a business litigation partner at the Chicago firm of Schopf & Weiss, LLP. “Sometimes you can do a surgical strike and sometimes there’s just no way around massive discovery.”

Fisher, the immediate past co-chair of the ABA Litigation Section’s Pretrial Practice and Discovery Committee, says the federal rules are a positive shift because discovery is so expensive in complex civil disputes. He notes that each state has different rules and many are not up to date. For example, in Illinois, the rules still say that electronic documents shall be produced in paper form, which everyone ignores.

A new lawyer seeking to become a litigator today must know at least something about the issues involving discovery, which means understanding that at least in federal court, the trend is a more collaborative approach that discourages a full-blown fishing expedition whenever possible. “Cost is the touchstone,” Fisher says. “At the end of the day, what is it you really need to know? Do you have to get all of the Lotus notes files of the backup server? Do you really have to have someone’s hard drive imaged?”

There are a number of software applications that are used in the document review process. And these programs are getting more and more sophisticated. They can search by keyword or Boolean search phrases. But increasingly, the trend is to use something called “concept” searching or predictive coding, which combines both objective and subjective criteria. With concept searching, algorithms are used to assess whether certain documents might be relevant based on previous searches that were overseen manually by lawyers. It’s faster and some federal judges allow it.

It’s important to ask the court whether they allow keyword or concept searching. In some cases, the parties might agree in advance about which words or phrases in a mountain of documents will be searched.

 “Without flexibility . . . if everything that is relevant must be produced, it simply means that cases can’t be decided,” Fisher says. “It always comes down to costs because of the volume of data.”

Entertain Yourself!

So, you’re a talented writer, musician, actor, dancer, or painter. But your creative side works well in law, too. And, because you’re good at it, you decided to take the practical route instead of the starving artist route, maybe telling yourself that you’re making your parents happy. Besides, a decent living means you will have the money to pursue your art as a passionate hobby. Sound familiar?

Keeping a foot in each world might be possible. Practicing in entertainment law could keep you connected to the successful artists you wanted to be like or at least be around. They may ply their trades in Hollywood or Broadway or the recording industry.

“I wanted to be in show business,” says Mark D. Sendroff, a New York City entertainment lawyer who represents mostly individuals involved in some aspect of the Broadway theater world. “I didn’t want to take the chance that I couldn’t earn a living. I didn’t think I was good enough to pursue it professionally.” Sendroff, of Sendroff & Baruch, LLP, was involved in theater during college and high school and participated in summer stock in Warsaw, Indiana, playing the role of Robert Livingston in a production of “1776.” Learning about the field of entertainment law and specifically, theater law, he began jotting down the names of every lawyer’s name he could find on playbills when he attended professional performances. Eventually, he landed a job at a very small firm in New York, earning $50 a week. That was 40 years ago.

Ethan Y. Bordman, also an attorney in New York City, began his hunt for work in the field after college, begging a talent agent in Detroit to hire him after he graduated from college. After a cold call, “I photocopied my shoe that said ‘please give me a chance to get my foot in the door’ and I enclosed a formal note thanking her for taking the time to talk to me,” he recalls. Bordman, of Ethan Y. Bordman, PLLC, got the job and went on to earn a JD and an LLM in entertainment in London at the University of Westminster.

Bordman represents writers, producers, directors, and others involved in the film industry.

What is entertainment law? Entertainment law involves representing individuals as they negotiate a deal to participate in a production or performance or a book contract. It essentially involves contract law, copyright law, and the subcategory of Internet law. In Bordman’s case, he also acts as a consultant to production companies, helping them figure out how to finance their films. “There’s no such thing as entertainment law,” Bordman says. “It’s pretty much every area of law you can think of.” In sports law, for example, antitrust issues can come up. When you’re dealing with actors, there are labor issues that arise because actors are members of unions.

What to do? Obviously, you should take as many related courses that your school offers in entertainment-related subjects, Bordman and Sendroff advise. And join the entertainment law sections of the ABA and local and state bar associations. But the real work comes from networking; getting to know the industry players and the lawyers who do this kind of work. Know the entertainers wherever you are; it doesn’t have to be in Los Angeles or New York City. And you ought to really love Broadway musicals if you’re seeking to represent those involved with such productions, or the artists who perform a particular type of music. “An entertainer can smell from a mile away if you don’t like what they do,” Sendroff says.

 

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