Brace yourselves. Expect the fundamental shifts that the legal community encountered this year to continue into 2021. My days, for example, have been filled with counseling clients about which rules and regulations will survive into February and beyond. Other clients are asking questions about how, in light of the shift to work from home, to cut costs by renegotiating their leases. What legal industry trends can companies and their legal teams expect to encounter next year? Here are some to prepare for.
Lots of regulatory changes
The Trump administration is currently updating and implementing numerous regulatory changes and agency rules that will significantly impact companies and individuals alike. For example, Centers for Medicare and Medicaid recently implemented rule changes concerning physician self-referral regulations.
A new administration will roll back many of these actions. We will see new policies, agency rules and administrative orders almost immediately upon President-elect Biden taking office.
Companies that operate in highly-regulated industries, such as healthcare, may feel a bit of whiplash come January. In-house regulatory counsel must learn a stack of new rules governing their industry. Those without in-house counsel may spin off more work to outside counsel in an effort to keep up with the changes.
Continued court delays
Jurors are opting out of jury duty citing COVID-19 concerns and courts are often ill-equipped to accommodate necessary social distancing. As COVID-19 cases continue to rise, parties will see more delays concerning in-person proceedings, especially jury trials. Where trials are happening, courts will give priority to criminal cases. Expect increased pressure to opt for bench trials (especially via Zoom or other electronic means) and alternative dispute resolution. Las Vegas courts, for example, have suspended almost all in-person proceedings through at least January, a timeline that will likely be extended if COVID-19 cases continue to rise.
Barreling toward trial may no longer give parties much leverage, at least for the near future.
All Zoom everything
The hope of delaying depositions and court proceedings, allowing them to occur in person, is fading. Companies and their counsel will need to get up to speed on Zoom depositions and hearings and ways to effectively prosecute their cases over video.
Upending legal norms
Arizona’s Supreme Court recently entered two orders aimed at allowing non-lawyer ownership in law firms, non-lawyer representation of clients and the payment of attorney referral fees, among other things. Utah is in the process of making similar changes. As we have seen overseas, this may lead to consolidation between accounting and law firms, among others, allowing companies to consolidate outside service providers.
A shrinking footprint
Companies and law firms alike are going to see increased pressure to give up square footage and shift operations to work from home.
Attorneys will drive some of that, having demonstrated they really can be just as productive from home. Some of it will be driven by pressure to cut costs to offset static hourly rates which also will lead to change. Although law firms and their clients may not be meeting over marble conference tables, clients will continue to demand responsiveness and the same high-quality work product they received while meeting in the office. Companies will have a lot of leverage to renegotiate lease terms once they come up for renewal, as more tenants move toward a work from home platform.
How to prepare for 2021
These are just a few examples of what companies and their counsel can expect to encounter in 2021. So how can they prepare?
1. Identify the relevant agencies regulating their industries and sign up for alerts concerning any new or changing policies, procedures and rules. Understand policies likely can and will change well into the first quarter of 2021.
2. Approach litigation with a clear end goal in mind. Do you need a quick and early resolution? If so, consider whether you will be better served by teeing up your case for an early mediation.
3. Get training on how to effectively utilize Zoom for depositions, hearings and trial. The same skills that make a great litigator in person may not apply in the virtual world.
4. Evaluate your operating expenses and consider where and how you can make changes. Whether it is consolidating service providers or real estate, understand your options and get help to secure the best deal possible.
Attorney Courtney Beller serves as vice-chair of the business litigation practice group at Fennemore. Her areas of practice include business litigation, healthcare and intellectual property.
