The federal government and the marketplace are undergoing revolutionary changes that will inevitably transform the business of law and operation of courts. The question arising from the uncertainty is, how so?
It’s hard to know, and a John Lennon lyric—“How can I go forward when I don’t know which way I’m facing?”—keeps running through my mind. But one thing is quite clear: Lawyers and law firms, as well as court systems and law schools, will have no choice but to respond to regulatory overhauls, reduced federal assistance, increased state responsibility, tariffs and resulting market shifts.
Experts predict that law firms will see increased demand for merger-and-acquisition (M&A) and other transactional and compliance work. International business will remain a wild card, albeit a potentially highly profitable one for those who read the tea leaves correctly, and a devastating one for those that do not.
Clients—especially institutional clients—are likely to demand new fee arrangements, perhaps based more heavily on outcomes than billable hours. With the anticipated decrease in corporate taxes, lawyers will need to rethink, probably multiple times, how to advise clients regarding tax planning and structuring.
Law firms are usually relatively recession-proof, but their clients are not. With several economists predicting a significant downturn, firms may need to adjust their client base to meet shifting financial circumstances and considerations. Some observers expect boom times for bankruptcy attorneys; others say just the opposite. The wise will prepare for both.
In times as volatile as these, law firms need to strategize and plan more than ever. That should start with prioritizing financial stability, nimbly adapting to changing circumstances and strengthening ties with existing clients. Clients need to know that their lawyers are on top of legislative, political and technical shifts as they seek wise counsel in unpredictable times.
The calculus for the court system is a little bit different. New York relies heavily on various forms of federal assistance to balance its budgets, and any sizeable cutback would invariably filter down to the courts.
In the past, significant budget cuts have meant layoffs, and layoffs mean delays in processing cases and giving people their day in court, and the justice to which they are entitled. Vital services such as alternative dispute resolution, interpretive services, mental health programs, specialized courts and similar initiatives utilized by millions are typically the first to go. Those are often the programs that disproportionately affect low-income individuals and marginalized communities.
The court system has no means to raise money itself, and its budget is very heavily personnel—people helping people. It cannot generate business, nor can it turn business away by, for instance, declaring a moratorium on murder trials, divorces or commercial disputes. Whatever happens in society ultimately happens in the courts; whatever comes in the open doors of the courthouse must be addressed.
Court leaders and stakeholders can derail damage by engaging in advocacy efforts to communicate the importance of adequately funding the judiciary. This includes outreach to legislators and the public to highlight how budget cuts impact access to justice, as well as exploring alternative funding streams such as private grants.
They can establish collaborative partnerships with local organizations, nonprofits and law schools to provide pro bono legal services, increase access to justice and reduce caseloads.
The courts need to prioritize low-cost technology solutions that enhance efficiency, such as online filing systems and virtual hearings, to streamline operations and reduce backlog. All of that should start with a thorough review of resource allocation to identify areas of waste or inefficiency and implementation of performance metrics.
But what none of us can afford to do is sit by indecisively in a “wait-and-see” posture. As another sage, Yogi Berra, advised: “When you come to a fork in the road, take it.”
By Hon. Gail Prudenti
Gail Prudenti is the former chief administrative judge of the courts of the State of New York; former presiding justice of the Appellate Department, Second Division; and the former dean of The Maurice A. Deane School of Law at Hofstra University. She currently serves as partner at Burner Prudenti Law, P.C.