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Utah Business

The pandemic had an effect on our legal system, but things are looking up. In our latest roundtable, we discuss all things legal in 2021.

A conversation about all things legal in 2021

This month, Utah Business partnered with Kunzler Bean & Adamson to host a roundtable event featuring Utah’s legal leaders speaking on court backlogs, the efficiency of legal tech, and navigating the law through COVID-19. Moderated by Jeremy Adamson, founding partner of Kunzler Bean & Adamson’s litigation group, here are a few highlights from the event.  

What are some of the biggest challenges your firms faced during COVID-19?

Jeffrey Handy | Shareholder | Babcock Scott & Babcock, PC

As the pandemic began we certainly had concerns as far as what this might mean for our respective clients, as they looked at what restrictions might mean for their businesses. Construction in Utah was an essential business, so work continued for them. And as you look around town, you can see construction has been going full force in spite of the pandemic. But there have been challenges that have come up. The price of lumber, concrete, and plumbing materials has all been skyrocketing and that’s adjusted how our clients have had to approach bidding and performing a job because these situations are creating some instability and new circumstances.

Brian A. Lebrecht | President, Director, & Shareholder | Clyde Snow

The capital markets have continued to be strong. It’s created opportunities for well-funded organizations and funds to go out into the marketplace and do acquisitions. That activity has been high. Good business owners who have quickly learned to adapt and were agile really took advantage of that. So the challenge has been closing transactions remotely, right? People were literally at kitchen tables when we used to be at conference room tables with large amounts of documents, so trying to get things signed and scanned and things like that have been a bit of a challenge.

Wade Budge | Attorney | Snell & Wilmer

The real estate market has been so hot that we’ve had to just throw as many resources as we can to meet the demand. I don’t think we’ve ever seen demand as high as it is right now. And it’s been difficult to just bring enough resources to get the work done that needs to get done.

We’ve had to work really well with our government partners because a lot of times we’ll be entitling projects early stage and they’re working often remote as well, and as a result, things which may have taken a month may take two or three months. And so you have a combination of struggles that you try to address at the same time. But I think people are starting to get more in the groove and efficiencies that maybe weren’t there in the summer are now. I think the efficiencies are starting to evolve and we’re able to serve our clients better now, as we’re getting more accustomed to these new processes.

The pandemic had an effect on our legal system, but things are looking up. In our latest roundtable, we discuss all things legal in 2021.

George W. Burbidge II | Attorney | Christensen & Jensen

We were running into all sorts of employment issues, especially at the beginning where this whole COVID thing was just an ever-changing process. We didn’t know exactly how it was being spread, how fast it was being spread, and what was causing it. But they did know early that there are certain people with certain conditions that seem to be more susceptible to having serious side effects. And so the concern was, well, what do we do? And there were all sorts of laws and regulations coming out, state, federal, and even countywide as to what you could and couldn’t do. And some of these seem to be even contradictory or inconsistent. And so it was just difficult because it was an ever-changing dynamic, chaotic situation, especially in the beginning.

Brian Tarbet | Chief Civil Deputy | Utah Attorney General’s Office

Mid-March 2020, we were just finishing the legislature. Everything was nice and smooth and then 24 hours later, it had all gone up in smoke. And so the legislature immediately started to claw back as it should, because we had no idea where this was going at that time. So there were several special sessions. They’re speculating on [the revenues], the budgets were slashed. The office buildings essentially emptied out and everybody went home. If we had 10 to 15 percent working in our office, I’d be surprised. Then of course, as the year wore on, we get into this session. 2021 was a much rosier picture with plenty of money and we, as a state, came through that very well-managed.

What effects have the pandemic had on your firms, on your firm culture? 

Jared Braithwaite | Attorney | Maschoff Brennan

Where our firm has seen effects is with associates and training. There’s just a lot of training that happens informally, not in organized Zoom sessions over lunch but by just yelling down the hall to your partner, “How does this happen? How does that happen?” And those training opportunities have diminished significantly so we’ve had to be pretty focused on trying to maintain those. Making sure that we’re making contact with the associates all the time as a check-in, almost like you would have been walking down the hall and peering into their office to make sure the training opportunities still happen so that if the pandemic goes on, you don’t have a year of attorney education lost.

George W. Burbidge II | Attorney | Christensen & Jensen

I’ve thought several times, as this pandemic has been going on, how fortunate we are that it happened now, as opposed to 10 years ago. 10 years ago it could have just wiped us out because we didn’t have the same ability to work remotely and work with clients. Even if we work at a laptop, if our clients don’t have the type of [technology] that would allow them to do remote meetings or depositions or things like that, it would have really been problematic.

Carolyn LeDuc | Attorney | Burbidge Mitchell

There are certainly some flexibilities now that that technology has made possible, and I think our eyes are open to ways of doing things that they weren’t before. Our struggle right now is knowing what the next step looks like. Our attorneys come in, our staff has not come in as much because they work in the communal areas, they don’t have dedicated office space away from everyone else, and we’ve tried to be more sensitive about that. So, if they wanted to work from home, we’d have allowed that, but we’re trying to figure out now, what does coming back look like? What does full presence in the office look like? Some of us still have children at home who are not being schooled in the normal school system so, that’s a challenge. We’re just going to have to be flexible and figure out what the next step looks like.

What shifts have you seen in the legal profession recently? 

Jared Braithwaite | Attorney | Maschoff Brennan

I think this was happening before COVID, but there was a shift slowly happening in law firms. And that was, where’s the data stored? On local servers that are housed inside the office? Are we going to the cloud? And for some [the pandemic] forced a migration [to the cloud] much quicker, once they said, in light of the pandemic, we kind of need it there because we can’t be dependent on a physical office. And I think we’ll see that continue. Everyone is essentially forced into a business continuity plan [now] if they didn’t have one before.

The pandemic had an effect on our legal system, but things are looking up. In our latest roundtable, we discuss all things legal in 2021.

At the same time…the potential for data security breaches will be heightened. Over the past few years, we’ve heard a lot about breaches in connection with law firms. And that’s burned a number of ethics opinions from state bars across the country about what our lawyers do use in the event of a data breach.

So I think over the next few years, that’s something that the law firms and businesses are going to be more aware of is,  what’s my law firm doing with my data? Are they treating it appropriately? And then what if the data security question is not if, but when, there is something that’s lost inadvertently or stolen by malicious actors, whatever it might be, what’s the law firm’s response going to be? 

Brian A. Lebrecht | President, Director, & Shareholder | Clyde Snow

I think on a philosophical level, I’m concerned that the legal profession, in general, is facing a talent crisis. That some of the brightest and the best are not choosing to go into law. [Other industries are] using all sorts of communication techniques that I can’t get my lawyers to even think about. And if I was 20 and making decisions, I don’t know that I would choose this.

There’s a whole group of law students that are about to come out of law school that spent a year plus learning remotely. And we are going to have to learn how to keep those people happy. Can we give people [the flexibility they want] in order to attract the most talented young people into this profession? Or are we going to say no, that pandemic was five years ago, everybody in the office, five days a week and that’s the way it’s going to be. We have to learn to adapt. If we’re not careful and we try to slide back as a whole profession to where things were, I think that the talent crisis is going to continue.

How has the backlog of cases and court delays affected you and your clients?

Christian W. Clinger, Esq. | Founding Partner | Clinger Law Firm, LLC

The backlog of cases has helped my mediation practice significantly. We’ve had to do a mediation by Zoom or other formats, which has been a little difficult because, with mediation, it’s important to receive a person’s body language when you’re making settlement offers. But yeah, there is definitely concern about the backlog cases. As the old adage says, “justice delayed is justice denied.” Courts have a lot on their hands right now.

We are going to have a period in appellate decisions and appellate rulings on the lot void for several years because of the pandemic because cases didn’t go to trial because appeals were not filed. And thus, we are going to be relying on case law. So several, several years old for our appellate rulings, instead of more current appellate rulings…because they’re just not going to be happening.

Jonathan O. Hafen | Attorney | Parr Brown Gee & Loveless

Somebody once told me that with every crisis comes an opportunity. One of the opportunities from the litigation standpoint that the courts have embraced is ways to more efficiently deliver just outcomes using technology. For example, if you’ve got a case that’s in rural Utah somewhere, you don’t have to pay travel time or travel expenses to lawyers. That could be really good for the clients.

Are you finding that arbitrations are moving along and faster and more efficient ways? 

Jeffrey Handy | Shareholder | Babcock Scott & Babcock, PC

I’ve got a case right now that’s an AAA arbitration. And one of the perspectives that we’re dealing with as we’re preparing for a hearing is trying to figure out the procedures and protocols that we are going to agree to as far as dealing with COVID-related situations. All of the parties and the majority of the witnesses are here in Utah, but our arbitrator is in California, which is in a different circumstance than Utah. And is it going to be in person? Is it going to be virtual? If it’s going to be in person, what do the procedures and protocols look like where that’s really up to the parties to determine? And sometimes it’s hard to get some agreement on that versus on the court setting.

Jared Braithwaite | Attorney | Maschoff Brennan

And with getting rid of the backlog, there’s just a lot of disparity between the different courts. California Federal Court, in our experience, has actually been pretty quick. Most of the judges [and their clerks] are remote from their homes. Texas is just having a free-for-all with trials in person right now. Because of the uncertainty, there’s a bit of a propensity, especially in the IP world where you have a broader choice to shop for a forum that’s going to provide you the quick relief or litigation leverage that you’re looking for. And for a lot of IP plaintiffs right now, that means Texas. So we’re seeing increased activity in the western district, and the eastern district of Texas.

The pandemic had an effect on our legal system, but things are looking up. In our latest roundtable, we discuss all things legal in 2021.

What’s your prognosis is for the legal profession going forward?

Jonathan O. Hafen | Attorney | Parr Brown Gee & Loveless

I think that the prognosis for the legal community is incredibly bright in Utah. Utah continues to be an absolute star from an economic standpoint, the ties to the way that we’re governed, to ties to the type of people that want to live here and work here. And I think that as the businesses in Utah thrive, they’re going to need lawyers. They’re going to need lawyers to help them resolve disputes. They’re going to need lawyers to help them do deals. They’re going to need lawyers to help them acquire and sell real estate deal with IP issues all of the things that the good lawyers in Utah do.  I think the demand is going to continue to increase for legal services because I think our economy is going to continue to grow.

I think that we’re going to need to adapt. I mean, I don’t know if anybody in here 10 years ago had heard the phrase, “Silicon Slopes.” Now we have a whole new, exciting aspect to our business community that will enhance the rest of the economy here in Utah as well. And as we adapt to provide services to the different types of businesses as they’re growing and seeing successes and challenges. That’s just more interesting legal work for us. And it’s part of the partnership that the legal community has with Utah’s businesses. So I’m excited about the future.

Robert D. Walker | President | Kirton McConkie

If we take a look at the underlying principles as to why we are successful now, we would raise work ethic innovation, adaptability. And I think in order for us to position ourselves for an even brighter future, we have to figure out how to adjust. If that’s what’s made us successful, now we’re going to have to figure out, OK what are the adaptations that we’re going to need to implement in order to have an even brighter future? And if we can do that, we will always stay on top of this.

Jared Braithwaite | Attorney | Maschoff Brennan

We came through a pandemic—people didn’t abandon the legal system and resolve their differences in the streets with clubs. And that was great, we made it through, the legal system was resilient. We adapted very quickly in the immediate aftermath of the shutdown in March and April. You had a lot of people with a lot of uncertainty. What do we do? What are the laws? Can people work? What’s the liability concern? And there were no experts, there wasn’t an attorney with 10 years of experience in the analysis of COVID with restrictions and laws, right? It was completely new for everyone. And you saw everyone rise to it. If we made it through the pandemic for the last year, we’ll make it through those future challenges. So I don’t think is bleak at all, but rather pretty hopeful.

The pandemic had an effect on our legal system, but things are looking up. In our latest roundtable, we discuss all things legal in 2021.

Christian W. Clinger, Esq. | Founding Partner | Clinger Law Firm, LLC

Governor Huntsman, Governor Herbert, now Governor Cox have done a great series of steps to put Utah’s economy in a strong position. It has been taking a number of years to get those policy mechanisms in place to have such a strong economy now. [And] Governor Mike Levitt. He later became Health and Human Services Secretary under the Bush administration, but a lot of the protocols for a pandemic were actually planned by Secretary Levitt. And I think we should all think about what he did in putting those plans in place. And had they been fully followed, we could have been probably in a better position as a nation. But he [enacted] those ideas when he was governor here in Utah and then took them later. So again, Governor Levitt with all the other Utah governors has really put Utah on the map for a leader in the economy, as well as health.

Brian Tarbet | Chief Civil Deputy | Utah Attorney General’s Office

Winston Churchill famously said, “After a time, civil servants tend to become no longer servants and no longer civil.” Christian just alluded to a number of governors all of whom I worked with at one point or another, either in the military or in this job. But that is the hallmark of what we do here. We as a government try to remember our position in this, we’re grateful for this business community, grateful for your clients, for what you do for what you mean for our children, the schools, and the universities. I worked for a governor [and] they have a commitment to do this right, to remember the proper role of government.

Lindsay Bicknell is the project coordinator for Utah Business magazine. A native of Cincinnati, Ohio, she graduated from Miami University of Oxford with a degree in communications. She has a background in television, print, and web media, as well as public relations and event planning. As a transplant to Salt Lake City, she can't get enough of the mountains and loves snowboarding.