Springfield Business Journal Editor Eric Olson discusses the law industry with partners Patrick Douglas of Douglas, Haun & Heidemann PC; Nate Dunville of Neale & Newman LLP; and Greggory Groves of Lowther Johnson Attorneys at Law LLC.
Eric Olson: What’s one word that exemplifies the temperature of the law industry right now?
Greggory Groves: We would use the word rising. It slowed down a little bit in 2020, but … regardless of whether the pandemic ends in 2021 or 2022 or never, we see things starting to rise. I won’t say it’s hot yet, but the temperature is rising,
Nate Dunville: I would agree with Greg. There seems to be, across practice areas, an increase in demand. Some of that, especially with the litigation stuff, is related to how COVID has pushed ... a lot of those court appearances, trials, hearings back. They don’t stop coming. They just all get kind of lumped together. Those folks in those practice areas are extremely busy right now. There’s a lot of questions out there and a lot of uncertainty.
Patrick Douglas: We have seen a lot of real estate pick up. That’s driving a lot of business: additional 1031 exchanges, contracts, leases, negotiations. For me, estate planning has also been very big. I don’t know whether that is because of some sort of an increase in our thinking about mortality with COVID or what.
In the courtroom
Olson: Throughout the pandemic, there were courtrooms closed and some build-up of caseloads. Is that something that’s loosening up now?
Dunville: We’re lucky in southwest Missouri, because I think that the judges and the courts did a good job balancing the risk with some of the reality of the role that they play in the legal system and making sure, where possible, cases that needed to be heard could be heard. Obviously, it’s a difficult time to call 200 people together to panel on jury. There’s some kinds of cases that necessarily had to be pushed back. Just recently, Greene County has moved back some of the restrictions, I think we’re up to 25% capacity in courtrooms right now, and the associated courts are hearing some … nonessential matters. Hopefully, as we head into the spring, we’re going to see that trend continue where the courts are going to start loosening some of the restrictions and we can get back to business as usual while still incorporating some of the efficiencies that were developed throughout the pandemic.
Groves: It’s just become unpredictable. Judge [Michael] Cordonnier and the other judges in Greene County did a great job of getting on top of this. I think Christian County did a great job of getting on top of this. And yet you have one isolated episode of somebody in the courthouse getting COVID, it sets everything back down again. Just as you see a light at the end of the tunnel, something new develops. It’s just become unpredictable. And you’ve just got to learn to go with the flow.
Olson: How frequently is that happening?
Groves: It just seems like there’s always one circuit in this area pushing back and saying, OK, we’re going back to phase zero, or they have different phases for an area. It means we’re probably not having any in-court hearings at all, unless something just drastic happened. We’re seeing it on a monthly to every other month basis where one of the circuits – just as things started to improve – we’ll get somebody with COVID. For instance, I’ve had one case ready to be tried in Taney County, and it’s been pushed back probably four different times, and it’s not a jury trial.
Olson: What’s been the most significant impact of the pandemic on your operations?
Groves: We have 60-plus employees, a wide variety of individuals, and when COVID-19 first came out, we decided to allow, not require, but to allow our people to work remotely. There are some people that probably need to work remotely because of their health risks. If we have somebody who is pregnant or somebody who has more health conditions, they absolutely need to stay at home. The issue is if I’m here where one of the other attorneys is here and needs to go down the hall to find somebody to hand them paperwork to do or whatever, it’s much more difficult. While we tried to work within that framework, we’re still working on how to become more efficient. It takes more time to pick up the phone. It takes more time to email than it does just to drop by and say, “Hey, let me give you this real quick or would you help me out on this project real quick? What do you think about this?” That has stopped with the idea of remote being increased. It’s just that juggling of how do you do remote versus how do you make your operation be as efficient as possible.
Dunville: It’s been a real transition trying to establish policies and procedures for managing the workflow. Of course, always having that contingency in place for an employee or an attorney [who] comes up positive and then has to … take some time away from the office, away from their practice. Just today [Feb. 9], I appeared on the docket in Christian County via video. It ran really smoothly, and it was pretty efficient. There’s some of those things that as they get incorporated into the practice, that hopefully we’ll be able to keep some of those efficiencies going forward and it will, in some ways, transform the way we practice law.
Olson: Do you see that being one long-standing change, the virtual meetings in the courtroom?
Dunville: I will candidly say that for evidentiary hearings and things like that, I hope not. But for more routine appearances and things that fit the format, I think that it’s a great way to increase efficiency and possibly move cases through the court system a little faster. It’s important that we look for the bright spots in all of this.
Douglas: We have a Jackson County case pending that I think we’ll probably be able to do remotely. That’s a big deal to my client to make me travel all the way up there for something, but here I’m going to be able to do it really cost effectively. I’ve taken care of a probate proceeding or two that I would have gone to Green County for; I didn’t need to even step outside. There is a convenience factor there that’s kind of evolved.
Olson: How have you guys handled client meetings?
Dunville: I would always prefer to have a sit-down, face to face with people, but these days that’s not always possible. The kind of widespread acceptance of video conferencing technology has helped make this format a little bit more palatable for people. It does give you the ability to communicate better with the client than a mere phone call.
Groves: Most of our individual meetings that we actually need to talk to them about sensitive issues take place face to face. What we’ve done … is modified our conference rooms. A lot of them have the plexiglass right down the middle of the conference room table. It’s just like going to a bank, where you drive through and you have that protection between you and the teller.
Olson: Something that’s resulted from COVID-19 is lawsuits against employers over claims that they’re liable for individuals’ contraction of the virus. Some 14 states have passed COVID-19 lawsuit protections for companies. What’s your take on those types of suits? Have you seen them being filed in Missouri?
Groves: I’m not seeing any particular cases in Missouri. I did see a case where Walmart got sued for that very situation. The problem with those lawsuits … is it is so hard with the pandemic to prove where you received the COVID. Just filing a lawsuit is sometimes enough to create a poor business situation and forces the business organization to make a decision. If you do what basic (Centers for Disease Control and Prevention) requirements are, I’m not real concerned. It makes for good news. It makes for good information, but I haven’t seen any successful lawsuit. I think the risk is low if you take the reasonable precautions.
Dunville: We’ve been having a lot of inquiries about whether or not imposing certain requirements, whether it be masking, encouraging vaccination and questions of that nature, whether or not requiring that of employees is violating their rights. That’s probably where you’re likely to see a little bit more action. We’re so early in this and with the speed of litigation throughout the last year, there is no real outcomes to be reported. Overall, I think that it’s just a matter of taking reasonable precautions.
Olson: What advice would you have for employers on how to best protect themselves and how to protect their employees?
Dunville: Consult with legal counsel. [Laughs]. It’s going to depend on the nature of the employer, the kind of operations they have and some of those circumstantial factors. I’m not sure that I would give a blanket piece of advice except to make sure that you are operating to ensure the safety of your workforce and your customers and not taking any actions without fully evaluating the consequences.
Groves: The (Equal Employment Opportunity Commission) has come down with guidance that says it’s OK in light of the pandemic to require everybody to have their temperature taken when they walk in. The EEOC has actually come down with guidance, I believe, that has said it’s OK to require vaccination. Now, the problem is there really are some people that may have reason not to be vaccinated and may have some health issues. That, I think, is where the employer’s going to incur the greater part of liability is if they completely ignore individuals who may be the exception, as opposed to the rule. Most of us can probably get vaccinated and nothing will happen. It’s the same thing with wearing masks. There are some people that have asthma issues. You just have to decide how you’re going to deal with those.
Olson: What other trending types of suits are you seeing?
Groves: I don’t know that we’re seeing it here yet, but I think it’s been on an increase across the country. That’s the cybersecurity … or the ransomware. We’re seeing more and more of that litigation nationwide. Again, I haven’t seen any particular lawsuits in our area yet, but I think there is some increase in cybersecurity litigation as we go forward.
Olson: That would be determining, in the case of a breach, who is liable?
Groves: That’s exactly right. Did the employer take enough steps to avoid the breach? One of the adjustments you have to make is when you have people working at home, you can’t just put them on their computer and let them do whatever. You’ve got to have the security protocol in place.
Douglas: As COVID came on, my instinct was, “Oh, here we go again.” We’re going to have a 2009 dip and everything’s going to be lower. We’re going to have a recession, demand for products and services is going to drop. As usual, I’m wrong. Real estate is crazy high demand. This might be some sort of an urban to rural flight, but it does seem like we have a lot of out-of-state buyers, just a lot of competition for real property, farms. That just completely took me by storm. My guess is that it’s from out of state and other people out of the area coming in and just seeing the value in having space and land, or maybe getting away from a city environment that they’re in or other transportation. For whatever it is, our area has completely boomed. Now, I’ve got a lot of real estate clients who are really happy with the fact that everything’s gone up in value.
Dunville: Maybe not as much now as early in the pandemic – there was obviously a lot of questions about enforceability of contracts and enforceability of leases, interpreting force majeure clauses, where there’s an act of God, like a pandemic. I think I spent about a month doing nothing but that at one point this year. The booming real estate market in southwest Missouri right now, it’s created a lot of situations where people are, even in successful transactions, needing a lawyer to step in and assist. That certainly seems to be the persisting trend.
Olson: An observation inside the industry locally is recent partner changes. What does that signify? I’m curious, too, if young attorneys coming into the industry still set that as their goal.
Dunville: Overall, it’s a sign that the legal industry is healthier here. There’s plenty of opportunity and our need for people. At Neale & Newman, certainly just in the time since I’ve been here, we’ve had a number of senior partners who have retired. There is always some level of planning for the future, just like you would in any business. For younger attorneys entering the field … I would not recommend that they come out of law school and have their sights set on becoming a partner instead of getting out and finding an area of law practice that suits them and then finding the people and the environment that they can perform it best. Once you’ve found that, then think about whether or not you want to be a partner there, because if you go the other direction, you might find yourself in a permanent position at a place where you aren’t going to be able to be at your best.
Groves: Most of our partners that leave … have been our managing members. They’re not leaving for other firms. They leave for a particular client. They go to become general counsel or an officer of another company of one of their clients. I’ve actually talked to people now that they don’t want to be a partner in a law firm. Part of that is work-life balance.
Olson: Is that OK for the industry?
Groves: I think it hurts the litigation industry. If you’re doing transactional work, you have to spend some overnight hours getting things done. Don’t get me wrong at all. But when you’re preparing for a jury trial, you may be spending a great deal of time … getting ready for that jury trial and working really hard. At least what we’re seeing is people are not as interested in becoming litigation attorneys and doing that type of work.
Douglas: I kind of grew up thinking … you want to get somewhere and land and stay there a long time, you know, get your roots deep and so forth. I don’t think a lot of the younger folks seem to have that same mentality, and I don’t think it’s necessarily good or bad. But I think it will make for an interesting dynamic. Twenty years from now, it’ll be interesting to see.
Olson: I was looking up some trends in the industry, and I found in the American Legal Magazine that the top trend for this year is embracing new talent strategies. What does that mean for your firm?
Douglas: You do have a different level of motivation, maybe a different value base, maybe a different commitment level. When you’re looking at these young folks … you think one size fits all. This’ll motivate them. It’s going to be the pay, or it’s going to be the benefits or all these things, or it’s going to be the partner track, and I don’t think that’s at all true. ... What seems like is more in play, that question of what is it they actually want and value, and would motivate them to be at their best. … It’s the custom approach. You just really don’t know, but you’d better figure it out. You’re not going to do well if you’re not going to attract new talent and bring them up to be the folks that are carrying the ball.
Dunville: For us, this year has been a lot about adaptability and flexibility. When you are recruiting talent, it’s good to be able to tell people that if we’re forward looking.
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