Springfield Business Journal Editor Eric Olson discusses trends in the law industry with Matthew Growcock, managing member of Lowther Johnson Attorneys at Law LLC; Danielle Kincaid, partner at The Elder Law Group LLC; Scott Pierson, partner at Twibell Pierson Criminal Law; and Richard Schnake, partner at Neale & Newman LLP
Eric Olson: In the past year, there’s been some pretty significant changes for each of you in different ways and at your firms. What’s the biggest piece of news?
Richard Schnake: We are moving further into gender diversity. Recently, as of our partner retreat three weeks ago, we invited Melissa Bade into the partnership. She does a really good job at what she does and she has a real heart for what she does, and we’re excited about that. My partner Judson Poppen, his wife Kirsten, who’s an outstanding lawyer in her own right, has decided to get back into practicing law, so she’s joined the firm. And we’ve hired two female associates who will start next year. Then, after 38 years-plus at American National Center ... we’re moving to Farmers Park.
Danielle Kincaid: The big news is we opened our firm. My law partner Angela Myers and I, and attorney Nicole Lindsey, opened our doors on Sept. 9. Most recently, we’ve been joined by Dianne Hansen, who is an elder law attorney that’s been in practice for quite some time and was one of the leading elder law attorneys that brought that area of practice to southwest Missouri. We’re the new kids on the block but got lots of years of experience.
Scott Pierson: I get to be the new firm, as well. We opened Twibell Pierson Criminal Law, which I hope to be the new criminal defense firm for the future for Springfield. Branden Twibell and Bert Twibell, I partnered up with them and left [The Law Offices of Dee Wampler and Joseph Passanise PC] to form it. We have three staff on the 16th floor of Hammons Tower and started Aug. 1.
Olson: How long were you with Wampler and Passanise?
Pierson: Almost six years. It just became time to make a decision on where I wanted to go and how I wanted to practice.
Matthew Growcock: Our changes have been some personnel moves: Michael Miller leaving the firm after he had been with the firm for more than 15 years, the managing member for more than seven years, to go to Mid-Missouri Bank. His value to us and the work he did, we can’t replace that, but we’re doing our best to work through those issues. I’ve taken over as managing member. I’m very fortunate that Michael left a very well-oiled machine. But that was a change for me. Just trying to figure out how to deal with the business side of the practice.
Olson: Do you have to reshape a client roster when you take on a role like that?
Growcock: I’m four or five months into it, so still getting my feet under me. It has not been a change in my legal work habits or clients. It’s been finding time to do the other things and still get the same amount of law practiced. Mostly what it means is that I sleep less than I did before.
Schnake: It’s going to affect family time. There has to be a give someplace.
Olson: Are you experiencing some of that with the startup of a firm?
Kincaid: Starting a firm is different than walking into a firm that’s been established. We were lucky enough to make an offer for three of our former staff who came with us, so not having to train them – they just step up and do what needs to be done without us even having to ask. But the paperwork of getting business insurance in place and malpractice insurance and doing the social media and all the other advertising things and practicing law has been an interesting road to walk down.
Olson: In addition to the startups in our market, we’ve had some mergers, some closures of offices. What’s behind that activity?
Pierson: Law firms are becoming more localized in the sense that people want, businesses want, a firm that knows them and knows their purpose. And in Springfield, there’s a real entrepreneurial spirit here that says, “Hey, you can start a business here. It’s cheap to start a business here. And you can keep overhead relatively low.” It’s also true in the legal market. That’s exactly what Danielle is doing, as well. We’re not trying to serve every single practice. We’re trying to be a boutique firm.
Olson: Do you think there is good opportunity in those boutique practices?
Pierson: No matter what, you want to go to somebody who specializes in anything. The same is true for criminal law. There’s enough people in Springfield that you don’t need a ton of general practice firms anymore. You need that boutique element.
Kincaid: You still need some, obviously. But what I love about the legal profession is that at its core, we all have a bond and we all adhere to a set of principles. I have found so much support from other attorneys, competitors of mine, recognizing that there is enough work in this community for all of us.
Growcock: The law practice, as much as any other profession, it’s always a constant struggle to find that work-life balance. Technology has made it an around the clock type of deal. I think what we see with some of these new firms is that they want to have their finger on their culture of their firm. We have a lot of history in some of the other firms, from 1903 to 1975, and otherwise, we have a lot of history of what our culture is. It’s progressing and changing and getting better, but it’s not the same opportunity some of these new firms have where they can create their own culture and work on whatever is important to them.
Olson: In each of your areas of law, what types of cases are growing and are you seeing more or less cases right now?
Schnake: In our firm, we’ve sort of morphed from a couple of areas, general litigation and business, into not a boutique firm but individual lawyers who have areas of concentration. For example, I do intellectual property work. I think there are two or three of us in town who know anything about that. If I have a client who calls and says, “I need this,” I can point him or her to somebody down the hallway. When you hire me, you hire the whole firm. When the economy is bad, litigation goes up; in the business, work goes down. Typically, when the economy is going, the business work goes up, litigation goes down somewhat. You’re always going to have domestic relations stuff. Suits over breaches of contract, you don’t have those as much because people are able to pay the bills. I was talking to a couple of my partners the other day about how many millions of dollars in mergers they’ve done over the last year and trying to put a figure on it was just phenomenal in terms of the values of the businesses that they’ve helped put together.
Growcock: My practice is largely litigation based. The greatest growth I’ve seen is in employment-related claims. In the last eight or so years, there’s been a lot of employee-friendly regulations passed. Small employers cannot always keep up with those because they’re too busy trying to run their business. What I’m also seeing a lot of is lawsuits over noncompetition agreements because employees are trying to be portable and go to different companies and they’ve signed these agreements.
Kincaid: We’ve seen two areas really grow. One is the asset protection side, realizing that your only options are not an irrevocable trust. Your only option is not transfer the assets to the kids and cross your fingers and hope nothing goes wrong. We’re not talking “uber” wealthy here, we’re talking middle class people that have saved and now husband is in the nursing home and mom doesn’t know what she’s going to do to live on the savings that they’ve saved. The other area is litigation, power of attorney litigation as people live longer and lose their capacity, and a child is stepping in and using or misusing that power of attorney.
Pierson: Crime always happens. The difference for me is the change in criminal justice reform in Jefferson City. It’s really created some opportunities. Most notably for me is expungement law, which is kind of a niche of mine. In 2018, the number of offenses that can be expunged, so your records could be sealed so somebody is no longer a convicted felon, went from 13 to 1,900. That created an avenue for people who’ve had the scarlet letter on them and to go ahead and be able to erase that. It’s my favorite part of my practice because so often I get people when things are going poorly, even if you’re an innocent client. But expungement law is a situation where somebody’s done things really well for seven, 10-plus years and so they’re coming back and getting rid of that.
Olson: There are some other changes in Jefferson City this summer. What are the pros and cons that you see in the tort reform Gov. Mike Parson signed into law?
Schnake: The legislature, I think with good intention, has tried to tamp down some of the costs of litigation, speed it up. The changes that happened gives the judge some discretion as to how much discovery to allow in a given case. So the person whose case is worth $25,000 may not get as much as the person whose case is worth $2.5 million. I think it’s going to spawn a lot of litigation over whether trial judges are acting correctly to limit discovery.
Olson: Are you referring to Senate Bill 224?
Schnake: Yes. That limits the number of interrogatories you could ask, it limits the numbers of hours in deposition, including discrete subparts. If I’m handling a case for an injured party who may have all kinds of medical expenses, but there’s only a $25,000 insurance policy on the other side and the judge says, “You can’t do this or that or the other,” do I have my day in court or not? If it’s a fraud case where you’ve got something and you need to fair it out, but you have a limit on how many questions you can ask or how many people you can depose, it makes it really tough to make that case.
Growcock: A lot of it is going to depend, on the discovery forms specifically, how the judges are going to apply it. There are ways within those revisions that you can ask more questions, you can take more depositions, but you have to go to the judge and then there’s this whole proportionality requirement and it’s typical that the defendants and the plaintiffs aren’t going to agree on the amount of damages. What is your baseline for determining proportionality to then decide how that’s going to impact your discovery schedule? It was a good purpose to try to reduce costs in the discovery. If the judges have the ability to let us go outside those guidelines and let us add more interrogatories and add more depositions, then I’m not sure that we’ve accomplished much.
Schnake: That’s where you have lawyers coming to people like me, who deal with the appellate courts, to try and go to the Court of Appeals and get an order prohibiting the trial judge from doing this or ordering a trial judge to do that.
Kincaid: Which just increases the cost that wasn’t there beforehand when you can ask all the discovery you wanted. It also will be interesting to see if people feel like they got their day in court if their attorney is saying to them, “I can only ask this many questions or have this length of a deposition, so do you really want to push this?”
Growcock: The other thing it can do, too, is hinder resolution in the case. It’s no secret that very few cases actually make it to trial. But in order to do that, each party needs to believe that they’ve been provided the information they need to evaluate the case and decide should we try to resolve it, do we go to trial? Depending on how this is applied, it could, in many different ways, backfire and actually increase costs.
Marijuana and law
Schnake: Something that I think everybody is watching at least on the business side of things is all the hoopla with the medical marijuana laws because there are so many implications with that. The interplay between state law allowing it and federal law still saying it’s not allowed. So, the banks that we represent may not be able to have accounts with those businesses because they can’t deal in anything but cash. There are bills, at least one bill in Washington, or two, that aims to at least give the banks some relief.
Pierson: They don’t prosecute, and they don’t go after misdemeanor marijuana possession like they used to. They are going after people who traffic in drugs, which that’s going to be my client.
Schnake: It’s a many-headed hydrant when you look at what one little law can do.
Growcock: The drug testing issue becomes a big problem. The impairment – how do you establish that? There’s no really good test out there to test the current levels and how it might be affecting your body.
Pierson: The Missouri State Highway Patrol, if they get blood back on somebody, they’re not even testing for active THC in the system. They’re testing for metabolite to see whether or not that’s present. And all that means is that somebody has ingested marijuana within a 30-day period. Good luck proving that for intoxication.
Kincaid: As an employer, do you say you can’t use medical marijuana when it’s been doctor prescribed because I’m concerned about what you’re going to do when you’re at work?
Pierson: That’s a question for any prescribed medication.
Growcock: The tension is the impairment issue. Is it impairing your ability to do your job right and how do you address that? It’s important to have an employee handbook that is specific to what you do but also stays updated.
Olson: Are there enough new law professionals interested in the field?
Pierson: We have a really good economy, which means there is really good jobs for those lawyers who are coming out. But the public sector cannot compete monetarily with those jobs. So from a criminal justice point of view, you have public defenders who are underpaid and underserved, which is going to matter to the average taxpayer. What’s going on right now in Greene County – you have a jail that’s overcrowded and you don’t have enough attorneys to get them through. You can get more law enforcement, you have more prosecutors, but right now the public defender’s office is not taking cases for people who are in custody for three to four months. That means the taxpayer is footing the bill for those people to sit on bonds that can be relatively low, but they still can’t make. The county is funding now contracts for attorneys to take cases in order to try to alleviate the cycle. We need to be cognizant of the fact that an underpaid public defender system – which Missouri is one of the absolute worst in the entire country – is going to have dramatic effects for a place like Greene County, which really values criminal justice.
Growcock: That’s the best summary of that issue that I’ve heard anybody give. It’s a big issue. For my world and what we deal with, I don’t really see that there’s a shortage of attorneys. The two things that we struggle to keep up with is technology and finding good support staff.
Schnake: Some of that has to do with the mindset of the newer generation. I’m 62 and when I started practicing law, we were there Saturday morning and sometimes Sunday afternoon. The idea was to affiliate with a firm, become a partner and be there until you retire or die. I don’t think lawyers coming out of law school are looking at longevity. They look to salary, they look to lifestyle.
Excerpts from Features Editor Christine Temple, firstname.lastname@example.org.
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