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July/August 2020

Hot Buttons

My Top 12 Growth Predictions for the Post-COVID Days

Lance G. Johnson

The old adage goes that “technology changes faster than people do.” I understand this to mean that the gadgets and communications technologies that might facilitate more information exchange will not substantially affect the ways that people think and react to such additional information. This is a comforting proposition because it means that many of the legal issues we will be facing are likely to be based on the “fit” between the new technologies and the way people currently act.

As I write this, the nation is still in the middle of the COVID-19 shut-ins with a limited number of stores open, supply chains stressed (at best) and disrupted (at worst), and everyone who can working remotely. Those who cannot work remotely bear the brunt of the risks from a virus that can infect others days before a carrier ever has symptoms. The only thing that seems to curtail the spread is isolation, to the detriment of forcibly closed businesses and suddenly unemployed staff. A viable vaccine seems many months away.

Even with a gradual easing of the isolation restrictions and reductions in capacity due to distancing requirements, the economists predict a gradual recovery as the infection is contained and employees are less afraid to return to the workplace.

So, what might a firm do to get ready for the post-COVID days and help clients who find themselves with unique issues in uncharted legal waters? Following are 12 of my predictions for some legal issues that will become Hot Buttons for law firm growth.

1. Automation is your new best friend.

Back in the day (well before email), I worked with a firm whose lore had it that the firm had refused to install a fax machine for cost reasons until a key client threatened to pull its work. The firm leaders needed a clearly defined cost-benefit analysis to invest in their technology infrastructure. Such client-driven demands are still with us but now in more subtle ways that are just as important for today’s consumer of legal services.

The internet has delivered entertainment on demand, shopping from the recliner and social sharing platforms that encourage the exchange of an array of ideas and opinions. The technology has allowed consumers, including your individual and business clients, to demand and receive services without substantial barriers. Brick-and-mortar declines while online markets grow.

So, what does this mean for your law firm? In my view, it means that you need to reassess your method of delivering legal services and up your technological game to reach clients who are accustomed to personalized delivery with little effort and who will not likely want to go to your office for a face-to-face meeting. If my millennial children are any measure, products as they are of ubiquitous convenience technologies, they will also be unwilling to make first contact by the phone. You will have to bridge that gap.

You need to break down physical and logistical barriers to doing business with you. You will have to figure out how you can remotely interact with the relevant courts or government agencies for your practice area.

Automating your practice is a “right now” priority action item. Your competition either has this infrastructure in place or is in the process of putting it in place now. By week’s end, you’ll be losing business and probably won’t even know it.

For example:

  • Do you have an internet-based advertising plan to get your name and services before the potential client?
  • Do you accept credit cards through an email link sent to the client or to a payment portal?
  • Have you transitioned to electronic payment receipt so you don’t have to go to the office to get the mail?
  • Better yet, have you forwarded your mail for the next couple of months to go to your home address, so you have even less need to go out?
  • Are your intake forms able to be filled out on a tablet without a scanner?
  • Have you made video teleconferencing easy for the client?
  • Can you do business by text message?
  • Can your partners or management team meet effectively without having to travel or leave home?

For example, I have just started to use Zoom for meetings. I am late to the game with this system, yet I am pleasantly surprised at how robust the software is and how many features are available with the free version. As a solo, I can use Zoom to connect better with more clients at no cost than I ever could using phone calls or flying to meet them for the day. (Did I mention that it was free?) I should have started using this years ago, but COVID-19 made it mandatory. My silver lining.

I once heard someone insightful say that competition among law firms for clients is a bit like a poker game. Everyone at the table can see what the others are doing. Nonetheless, in every poker game there is one fool. If you don’t know who the fool is, it might be you. Automate. Automate everything. Now.

2. Employers will need help getting their staff back to work.

The aftermath of a pandemic also means that employers who can open will need to reassure their staff that it is safe to come back to the office environment. Such safety can be addressed with automated cleaning technologies, like UV treatments in the air ducts and overnight ozone generators once the building is empty of people (and plants), increased cleaning schedules, and ready access to existing sanitizers and disinfecting wipes. Policing the claims and effectiveness of advertised cleaning technologies may provide a need for legal counsel skilled in products liability and false advertising.

Other safety reassurances will have to come from new office policies that address exposed, symptomatic or diagnosed COVID-19 employees while remaining in compliance with other applicable state and federal laws that regulate paid and unpaid sick leave. (Establishing such policies now with sufficient breadth might also cover other types of mass-effect issues, e.g., tornado, earthquake, flood or other kinds of natural and man-made disasters.) When, whether and how to draft these policies will likely involve an increased demand for health care, employment, ADA, OSHA, FMLA and human resources lawyers.

With COVID-19 restrictions and as the unemployment rate rose higher every week, many states banned evictions. Many people did not pay rent, and your laid-off staff may be in arrears when the restrictions lift and landlords want their back rent. Technically, this is not the employer’s problem, but it could become a staffing and morale issue if trained employees now find themselves distracted by eviction proceedings and pulled away to mandatory hearings. Should the firm help by arranging with outside counsel to handle such matters? Maybe the firm could use this as a training opportunity by allocating an associate to handle the matter pro bono under the guidance of an experienced partner? Might the firm co-sign a loan note to help the employee become current subject to a repayment plan deducted from future paychecks? A bit of financial creativity and a familiarity with the applicable landlord-tenant laws might go a long way toward preserving a key staff member while boosting office morale.

3. Litigation and litigation finance practices will spike post-COVID.

The significant disruptions of the supply chain systems mean that there will be lots of finger-pointing. Allegations of contract breach and claims for insurance coverage will all hit the courts and arbitration panels. Somehow, those proceedings must be financed by loans or investment.

The contract folks should have a field day with new work from the unanticipated pandemic. Is COVID-19 an intervening “act of God” type event that voids contractual obligations? Does your existing pre-COVID contract need revising in a post-COVID world? Are suppliers better off with a renegotiated contract or litigation to enforce the old contract?

4. Financial fraud is also likely to jump up in activity.

The sheer number of checks mailed to individuals in 2020 provides so much negotiable paper and personal financial injections that I would be surprised not to see a statistical jump in fraudulent schemes, identity theft and outright theft linked to these checks.

5. Court technology specialists will be in demand.

Courts have been slow to adopt new communications technologies. The COVID closures and meeting restrictions have forced state and local courts to find new ways to do business from electronic filing to telephonic or even video hearings. (At the end of March, the executive committee of the Judicial Conference temporarily authorized the use of video and teleconferencing for certain criminal hearings despite Criminal Procedure Rule 53 that otherwise prohibits broadcasting of proceedings.) If this temporary authorization goes well and is effective, might there be a demand for more expansive communication technologies for the courtrooms so that courts are ready for the next emergency?

6. Health-care, senior and HIPAA law practices will get busier. 

Health-care and senior law practices will likely find ample needs for legal services by nursing homes and those who reside in them. The relevant government agencies have been issuing a series of guidance directives and updates to prior notices regarding the control of COVID-19 in nursing homes. Guidance compliance, visitor screening and incident reporting all become topics for discussion and issues that may need skillful communication management to affected persons, families and agencies. Those communications will need to be sensitive to the applicable concerns for patient privacy and HIPAA compliance, especially if the home uses telemedicine to reduce the risk to caregivers and doctors.

7. Crisis management practices will continue to gain new clients.

Those companies that were affected early in the restrictions period and that were able to remain open likely retained counsel early to help manage the rapidly developing events affecting the business. The opportunities will probably lie with the small and medium-sized businesses that may only be opening in June or July. Those businesses will have the needs mentioned above as well as help with public relations messaging that assures customers that it is safe to return to the store or restaurant.

8. Corporate finance, restructuring and bankruptcy will be in demand.

Mergers and acquisitions not so much. The extended economic coma of the COVID closures has induced a liquidity crisis for businesses of all sizes. Credit markets are busy financing survival loans so optional legal projects and acquisitions will be put on hold until the economy shows signs of a true recovery. Restructuring will likely be considered by all businesses that were affected or shut down during the restrictions period.

9. After normalcy returns, M&A will jump.

Those earliest to recover will start looking to gain market share, better vertical integration and diversification opportunities among those businesses that were slower to act.

10. Trust and estate lawyers will get busier.

Nothing makes you think of a will and planning your estate like hearing of friends and young people who die unexpectedly. One report I saw estimated that only 37 percent of Americans have a will. That leaves a huge number of folks without a plan in place. Many families have the parents, some children, an insurance policy, their house and a retirement account to address. Such straightforward estates cannot really justify the costs of an hourly lawyer and an expansive estate plan. This need has given encouragement to the rise of online estate planning as a growing practice area. An attractive price point and the convenience of an online site match the need to stay home with the desire to get a plan in place should something happen. If more states adopt the Uniform Electronic Wills Act to permit electronic execution of a valid will with contemporaneous witnessing of the electronic signature, that 37 percent number just might start rising.

11. Law school admissions and graduate numbers will rise.

The economic downturn that will flow from the pandemic, followed by the host of legal issues that will follow, will cause new undergraduates to pursue legal careers. They will likely start to graduate in 2025-2026. They will be survivors who want a more secure future. Will your practice be ready to bring them in and train them to be the lawyers you need?

12. Digital courts will give birth to online dispute resolution services.

This isn’t my idea. Richard Susskind wrote a whole book on this topic (Online Courts and the Future of Justice). The experience gained by the operation of the courts by remote technologies through the COVID emergency should, however, provide the common experience basis that shows a remote, human-controlled, digital judiciary can operate just fine without the need to build courtrooms, pass participants through security screening or take the time to travel for a hearing. Call our recent emergency response a proof of concept that could give rise to a governmental (unlikely) or private service (like arbitration) that can help participants resolve their conflicts online. Such a system could handle a wide variety of small claims and disputes that do not justify full court proceedings. Fairly simple written exchanges for and against the claim would result in a decision. An advance participation waiver would bind the participants to a non-appealable result. The dispute resolution process would finally line up with our digital experiences in other areas.

Lance G. Johnson

Vice Chair

Lance G. Johnson is the owner of Johnson Legal PLLC in Fairfax, Virginia, and is currently the vice chair of Law Practice magazine.

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