A BETTER 2021? Attorneys plan for, predict legal trends for this year

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As the first month of 2021 comes to a close, it’s unclear if this year will bring the fresh start and return to normalcy that so many are waiting to see.

But so far in the legal world at least, 2021 has brought little change from the past year.

Paul Curtis, chair of Axley Brynelson’s litigation practice, said his hopes that this year would be different began to wobble when he started seeing trial dates dropped from his calendar.

“I don’t know why, but I was thinking beginning in January, it will be a trial a month, and it’s going to be a busy year, but here we are,” Curtis said. “Just this past week I had two long trials drop off my calendar.”

Curtis is far from alone. COVID-19 will continue to dominate the outlook for Wisconsin attorneys in a range of practices this year.

Bankruptcy

The pace of bankruptcy filings in 2021 will most likely mirror that for 2020, one of the slowest years for filings in a long time, said Craig Stevenson, bankruptcy group chair at DeWitt and board member of the State Bar of Wisconsin’s Bankruptcy, Insolvency and Creditors’ Rights Committee.

Right now, Stevenson said, many people are able to stave off declaring bankruptcy because of federal assistance from Paycheck Protection Program loans and other initiatives.

“A lot of people — debtors and creditors — are living in this limbo, and those programs are keeping them from having to make some of the types of decisions that they’re forced to make that end up resulting in bankruptcy filing,” Stevenson said.

Once government assistance and moratoriums end, courts will probably see an influx of filings. Stevenson said chances are strong that President Joe Biden’s administration will extend the moratoriums until the end of the year.

The flood of filings, he predicts, probably won’t come until the second or third quarter of 2022. But he’s also be careful to take every moratorium that’s handed down on its own terms.

“It’s anybody’s guess if the negotiations will produce on some of the Biden administration’s proposed measures,” Stevenson said. “I think everybody’s optimistic because things are moving, but it’s wait and see.”

Construction

In construction law, the future will largely depend on what clients want and are willing to do, said Roy Wagner, leader of Michael Best’s construction law group.

“Construction lawyers will be driven by clients’ experiences,” Wagner said. “The uncertainty of what the new normal will be will also fit what the lawyer is experiencing.”

The pandemic fell hard on certain segments of the construction industry, such as retail and entertainment. Throughout it all, though, industrial construction and infrastructure managed to thrive. Wagner predicts they will continue to do so under the Biden administration.

“For lawyers, we like the idea that we help people build, but we also try to solve problems and reduce tension,” Wagner said. “We need to be able to help our clients address those industries that have tension and be sympathetic.”

Innovation in the construction industry had been gaining steam before COVID, Wagner said, and the pandemic has only increased the need to adopt new technologies. Work with web- and cloud-based software, drones, GPS to track people and equipment, and other systems will continue into 2021 and well beyond.

Criminal defense

Bri Meyer, an associate at GRGB Law practicing criminal defense, divides her predictions on 2021 between what she thinks will happen before courts fully reopen and what will happen afterward.

She said the biggest differences will occur when a COVID-19 vaccine is widely distributed and when the state achieves herd immunity.

“Until we hit that point where courts are fully operational again, it’s going to remain status quo — a lot of plea hearings, a lot of adjournments — because it’s really difficult to have evidentiary hearings and trials over Zoom,” Meyer said.

Once courts again start operating more or less as they had functioned before the pandemic, she expects she’ll see a steady flow of trials as courts work through months of backlogs. At the same time, she thinks some courts and lawyers will want to continue holding proceedings online after discovering how efficient Zoom video conferencing can be.
COVID has also brought some more or less permanent changes to beliefs about incarceration practices, Meyer said. To avoid introducing additional infection risks to already overcrowded jails, officials have taken to releasing people in larger numbers during the pandemic.

“The success of that practice will have judges really reconsider who can be rehabilitated in the community and who truly does need incarceration for rehabilitation purposes,” Meyer said.

Family law

The COVID-19 pandemic has brought great efficiency to family law, said Gregg Herman, attorney and mediator at Loeb & Herman in Milwaukee. That’s a trend, he said, he expects to see continue into 2021 and beyond.

“The efficiency is just amazing,” Herman said. “I think (the pandemic) points out the incredible inefficiencies at which the court previously operated.”

The widespread use of Zoom has resulted in cases moving much faster than before. This has saved attorneys and their clients time. Some counties, including Milwaukee and Waukesha, are also allowing parties to waive their final divorce hearings, essentially allowing divorce by affidavit.

Herman said the pandemic has similarly accelerated a years-long trend toward mediation in family-law cases. Mediation went from being somewhat unheard of 20 years ago to being standard practice now.

“Today it’s just about universal for the simple reason that it works,” Herman said. “It’s a lot less expensive than litigation, and it gets better results.”

Herman said he wouldn’t be surprised to see courts and mediators continuing to use virtual proceedings for various purposes in the future. The only obstacle, in his opinion, is lawyers who are committed, almost out of habit, to their pre-pandemic routines.

Firm management

Many firms, regardless of their specialty, have found themselves forced by the pandemic to re-assess their business plans.

Jason Abraham, managing partner of the personal-injury firm Hupy and Abraham, said he’s taking every opportunity he can now to make sure he and his colleagues are making wise business and marketing decisions.

“It’s really a top-to-bottom analysis of everything you’re doing just to make sure you’re maximizing every dollar,” Abraham said. “You have to spend the time necessary to make sure you’re more efficient, you’re doing better with less, and you’re smart with your money.”

Personal-injury law has been hit hard by the pandemic. Abraham has had to respond by making some tough decisions, including laying off some employees and cutting most of the firm’s marketing budget. His firm has been helped greatly by its adoption of a disaster-recovery plan and its commitment to remaining transparent about its finances.

“The new normal will be something less than it was before, and you just have to plan for that,” Abraham said. “If it does get back to what was absolutely normal before, you’re in great shape, but if it doesn’t and you haven’t planned for that, then you’re really setting your business up for failure.”

Going into 2021, he remains confident the firm will continue to be well served by its long-time business model — avoid loans at all costs — and its commitment to employees.

“As a leader, you have to be willing to do the right thing, to show people you care,” Abraham said. “You have to be flexible. You have to listen to what they say and what they recommend. You just have to do that.”

Health-care law

Nor will the broad and diverse area of health-care law be immune from change. Kristen Nelson, an associate at GRGB, said everyone doing this sort of practice no doubt has big questions about both the future of the Affordable Care Act and possibly mandatory COVID-19 vaccination.

For Nelson, who defends health-care professionals and providers, federal enforcement actions will keep her busy in the months ahead. Government agencies have ongoing investigations into kickbacks, drug diversion, Controlled Substances Act violations, False Claims Act matters and the placement of people on the Medicare exclusion list because of convictions for violations related to medicine.

“I’m not sure if it’s because trials have been on hold due to COVID, so people have more time to do their investigating, but we’re seeing definitely more enforcement actions at the federal level,” Nelson said.

Another source of work will most likely be the increasing use of telemedicine amid the pandemic. Telemedicine makes accurate billing both harder and more important for providers, many of whom are still working remotely. The difficulties become especially pronounced when Medicare and Medicaid patients are involved.

Also, providers who are working from home can find themselves more than usually tempted to do things that result in HIPPA violations. In the past, such violations might have been hard to detect. Technology has changed that.

“Previously, it would be difficult to prove if somebody looked in a file,” Nelson said, “but these days, there are programs you can run to see who’s accessing which record and if there is actually a legitimate business need for accessing those records.”

Labor and employment

COVID-19 will remain a central consideration for labor and employment law well into 2021. John Gardner, chair of DeWitt’s labor and employment group, predicted that vaccination will remain one of the most pressing issues for employers for the next six or more months.

“I’ve had a bunch of employers already contact me regarding whether to make (vaccines) mandatory, which is potentially possible,” Gardner said. “Or do you want to incentivize it in some fashion, and if that’s the approach, how do you do so?”

Gardner predicted the change in presidential administrations will not be without consequences for this area of the law. Congress, he said, will most likely pass additional relief measures, such as an extension to the Families First Coronavirus Response Act. If that happens, it will provide aid in addition to that coming from Wisconsin’s own coronavirus-relief legislation,

Another change with the transition to a new administration will be in the ways in which federal agencies conduct their business. Gardner said employers will see more policies that favor employees and unions coming from the National Labor Relations Board. As for the Equal Employment Opportunity Commission and Occupational Safety and Health Administration, these agencies will become more likely than now to pursue enforcement actions.

“I think when control flips, we’re going to see much more aggressive approaches and much more active executive branch agencies when it comes to enforcing the laws that they’re tasked with enforcing,” Gardner said.

Litigation

Litigation was completely transformed in 2020 by the adoption of virtual proceedings, and the situation is unlikely to change in the foreseeable future.

Curtis, the Axley partner and litigation chair, thinks the time savings offered by Zoom mean judges will continue using the service for depositions, hearings and scheduling conferences. Mediations will also go increasingly virtual, Curtis said. In his view, unless there’s really a good reason for people to meet in person, virtual mediations should be the default option.

“Those are money-saving measures that I think our clients will benefit from,” Curtis said. “It’s been a horrible situation with COVID, of course, but some good is coming of it.”
Curtis and his team have invested time in learning the ins and outs of Zoom and other virtual systems. He recently watched a webinar in which two attorneys showed how they can talk to each other and conduct research in real time while presenting a case.

“We should get accustomed to that,” Curtis said. “I think we’re going to enjoy some of the benefits of having to go through this crisis in new and different ways in law.”

As for the types of civil cases that attorneys will litigate, Meyer at GRGB sees business-interruption cases as the big trend of 2021.

“A lot of businesses are looking to recover from their insurance companies, especially restaurants, bars, places that have suffered greatly from COVID,” Meyer said.

Meyer said a few courts in other states have already started deciding business-interruption cases, and a pending federal case is dealing with these matters as well. Here in Wisconsin, Meyer said business-interruption cases are being filed and may be in the summary-judgment stage but haven’t yet resulted in decisions.

“I think we’re going to see a lot of appellate decisions coming down on those types of cases to determine whether or not these business owners are entitled to recover their losses that they’ve suffered,” Meyer said.

Personal injury

As is the case for bankruptcy law, personal-injury law is likely to see more or less a repeat of 2020. One big change, Abraham said, is that people are driving far less, driving down the number of injury cases.

“I don’t think things will ever be the same as they were before,” Abraham said. “I think you’re going to see a long-time change in trends in driving.”

With fewer cases, Abraham has been thinking hard about the firm’s future. That means not being afraid of tough decisions needed to ensure the firm is making the most every dollar it’s spending.

As far as practicing by video conference goes, many attorneys are finding that, when they use this technology, they have to put in more time for preparation with both courts and their clients.

“The key, when you get a new client, is making sure you get them signed up right away,” Abraham said. “The way you do that now is different.”

He stressed the importance of keeping up with cutting-edge technology and cybersecurity risks.

State Bar

The State Bar of Wisconsin has been thinking about 2021 since last July, when its new fiscal year started and Kathy Brost assumed the role of president.

“The challenges that we face in 2021 are very similar to what we faced in the end of 2020,” Brost said.

Racial justice, a dearth of attorneys in rural Wisconsin and lawyers’ wellbeing continue to top Brost’s outlook for the rest of 2021. The State Bar has hired a new diversity and inclusion specialist, Dr. Jeneise Briggs, to help the legal profession support attorneys and law students of color. Top bar officials are meeting with minority bar associations to hear their concerns and suggestions, and Brost said there are discussions in the works to require diversity and inclusion courses as part of Wisconsin’s continuing-education requirements.

The State Bar plans to advocate in the coming Legislative session for a series of criminal-justice reforms, including changes to the state’s policies on expungement, juvenile jurisdiction and pay progression for district attorneys and public defenders. Brost is also eager to see broadband internet services extended to rural areas, a subject she has discussed with both state and national lawmakers.

“That’s the one thing I ask them to support on a federal level,” Brost said. “It’s become the new infrastructure. It affects everything, particularly now in the pandemic.”

As the State Bar continues to work toward these long-term goals, Brost is taking note of the innovation that the organization and the legal industry have undergone in the past several months. State Bar employees have gotten remote offices up and running in a matter of a day, courts have gone virtual, and attorneys have been able to connect to each other and share ideas through virtual events.

“There’s been a lot of good things that have come out of the pandemic,” Brost said. “Maybe we would have seen them (without the pandemic), but it would have taken a lot longer.”