Legal Practice Areas That Are Thriving During the Pandemic by Esquire Deposition Solutions
T
he 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 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 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
6
Attorney Journals San Diego | Volume 219, 2021
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.
Insurance Litigation 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.
