The economist John Kenneth Galbraith lumped all forecasters into two groups: those who don’t know what the future will bring, and those who don’t know they don’t know what the future will bring. This observation, while being both self-evident and humbling, hasn’t diminished one bit the business community’s ardor for the forecasting game. Some predictions actually come true, and those who act upon them are often handsomely rewarded.
Take, for example, early predictions that some legal practice areas that would benefit from the COVID-19 pandemic. In 2020, no one really knew what the virus’s impact on the economy would be or how federal and state policymakers across the country would respond. Likewise, no one really knew whether social distancing requirements would check the spread of the virus, or whether personal protective equipment would be effective, or whether a vaccine could be developed.
But we do know this: New legislation and new social and economic arrangements always lead to an increase in litigation and demand for legal services. New laws bring new compliance obligations. Economic stress triggers increased business disputes. And any change in the status quo forces a re-calibration of business risk and triggers a dash to the courthouse to sort out responsibility for unanticipated business and personal losses.
It’s ironic that a profession with a reputation for being resistant to change is, in fact, one of the prime beneficiaries of changing and challenging times. That is proving to be the case again with COVID-19
Litigators and Labor Lawyers Are Busy Now
There was broad consensus in early 2020 that the several legal practice areas would see increased demand due to the COVID-19 pandemic. The American Bar Association’s Task Force on Legal Needs Arising Out of the 2020 Pandemic surveyed several hundred lawyers in May 2020 regarding the changes COVID-19 would have on substantive legal areas (PDF). Respondents at the time predicted an increase in demand for lawyers to handle employment-related issues, insurance coverage disputes, estate planning, bankruptcies, housing issues, and CARES Act assistance.
Business consulting firm McKinsey & Co. predicted a favorable business climate for litigators, pointing out that historically, during economic downturns, litigation practices significantly outpaced transactional law practices.
According to legal industry recruiter Robert Half International, the COVID-19 pandemic will generate increased demand for these practice areas: litigation, contracts, cybersecurity/privacy, and health care.
So how prescient were these forecasters? Very prescient, as it turns out. The following legal practice areas all met predictions for increased COVID-19-related legal services demands.
This was an easy one. The insurance industry, which mitigates risk based on consensus assessments of foreseeable events and business conditions, was upended overnight by COVID-19 as everyone — businesses and consumers alike — scanned their insurance policies for relief from COVID-19-related losses.
The most recent report from Thomson Reuters Peer Monitor Index, a widely consulted source of metrics for law firm activity, indicated that litigation practices grew 7.7% from the first quarter of 2020 to first quarter 2021.
For the most part, insurers have been successful in defeating novel coverage claims arising from the pandemic — particularly business interruption claims, which threatened to swamp the industry. However, there are signs that plaintiffs’ litigation strategies — like the virus itself — are evolving in ways that make them less vulnerable to motions to dismiss. Insurance Journal recently reported on a North Carolina case in which the trial judge declined to summarily dismiss a claim for business interruption coverage premised on the argument that COVID-19 caused “damage to the air” breathed by the plaintiff’s employees and patients. Most business interruption claims have foundered on a lack of physical damage to the insured’s premises, a requirement for coverage under business interruption insurance policies.
Labor and Employment
One didn’t need much of a crystal ball to anticipate a spike in demand for the services of employment law advisers and litigators to help cope with workplace issues during the pandemic. COVID-19 has upended conventional expectations regarding nearly every aspect of the employer-employee relationship: wage and hour rules, remote working arrangements, illness, disability, productivity, discrimination and promotion, to name just a few litigation-rich facets work life that have been significantly impacted by COVID-19.
Every day it seems a novel legal claim sprouts from COVID-19’s fertile soil. Last month, in Pennsylvania, a federal trial court ruled that a woman terminated from her employment allegedly because she contracted COVID-19 had stated a viable claim for “regarded as disabled” discrimination under the Americans With Disabilities Act. The legal question in the case was whether COVID-19 is a minor, transitory illness such as cold or flu (in which case it is not a disability), or whether COVID-19 is in fact a disability protected by the ADA. The case is Matias v. Terrapin House, No. 5:21-cv-02288 (E.D. Pa. Sept. 16, 2021).
During the one-year period spanning first quarter 2020 to first quarter 2021, labor and employment law practice groups grew 5.7%, again according to the latest Thomson Reuters Peer Monitor Index.
Trusts and Estates
Many legal industry watchers predicted an increased demand for the services of estate planning attorneys during COVID-19, and that has been the case so far. This practice area undoubtedly benefited from the general public’s increased awareness of mortality during the pandemic, the legal profession’s willingness to serve clients outside their physical offices, and also from the enactment of legislation enabling remote notarization and attestation of testamentary documents.
Law practice management software provider Themis Solutions Inc. (Clio) has been surveying attorneys since the pandemic began in early 2020. Clio’s latest COVID-19 Impact Research Briefing, dated Sept. 16, reports a steady increase in “wills and estates” caseloads during the summer of 2021. Other strong practice area performers identified by Clio were real estate and intellectual property.
COVID-19 gave additional impetus to the growth of cybersecurity and data privacy practices — fields that were on a growth trajectory prior to the pandemic. As predicted, the rapid rise of pervasive remote working arrangements, along with the increased use of digital technologies to reach and serve customers, have made cybersecurity and privacy law specialists a hot commodity in 2021.
Earlier this year, legal industry consultancy Firm Prospects LLC told Law360 that the pandemic has caused law firms to beef up headcount in their data privacy, bankruptcy, telecommunications and antitrust practice groups.
Other In-Demand Practice Areas
Other legal practice areas currently in-demand due to COVID-19 are white collar crime defense, health care (particularly groups with Food and Drug Administration expertise), mergers and acquisitions, and finally restructuring and bankruptcy practices.
Lateral Link, a legal talent recruiting service, recently reported a very hot job market in Washington, D.C., for bankruptcy litigators, employment lawyers, cybersecurity lawyers, and health care lawyers.
Seizing the Opportunity
What can law firms do to respond to an increased demand for these types of legal services? First, law firms can hire lawyers who have COVID-related, in-demand legal skills. Clearly, that is already happening. A second strategy is to “skill up” existing personnel. Investing now in education — whether it’s CLE training from a bar association or work toward a formal degree from a university — will build the expertise needed to serve current and future clients. Investments in technology will also play a role in reaching clients who are newly receptive to digital-only or mostly-digital legal service offerings.
Finally, lawyers should strongly consider making changes to their website, directory, and social media listings to inform would-be clients that they have the ability to deliver legal services for COVID-19-related problems. According to Firm Prospects, the number of lawyers mentioning “bankruptcy” in their professional biographies rose by a mere 47 occurrences during a recent survey, while the number of lawyers mentioning “restructuring” leapt by 506 during the same time period.
Small changes like these capitalize on the fact that, while hiring can be a slow-moving, deliberate process, screening decisions are often hastily made — in many cases with the assistance of keyword-scanning software. Even a small change to a professional biography will capture interest from prospective clients and employers.