AFTER THE PANDEMIC: THREE PREDICTIONS FOR MEDICAL MALPRACTICE LAWYERS

The world is shut down. The COVID-19 pandemic is like nothing any of us have ever encountered. Everyone is in uncharted waters right now. It is likely that we’ll return to normalcy – hopefully sooner rather than later, but right now that is not certain. Nor is it certain what that the “new normal” will look like. 

What will the long-term effects be? Predicting the future is usually a fool’s errand, but I will take a stab at it. Down the road, I may look like a prescient genius, or not. My scope is narrow: Tort litigation, more specifically medical malpractice. That is mostly all I have done in my 36-year legal career. I have been on both sides, trying well over 100 malpractice jury trials in Virginia and handling hundreds of Federal Tort Claims Act medical malpractice cases all over the country. As I have seen a lot, I will address what I know best. So, here is my wisdom or insight or whatever you want to call it - for whatever it may be worth. 

The Promise of Widespread Technology-Driven Efficiency Will Finally Be Realized 

When I started the practice of law, April Fools’ Day 1984 – a date some would say is appropriate – law was a world of paper and telephones – landline telephones that is. We dictated on tape recorders which secretaries then transcribed using IBM Selectric typewriters. Fax machines were cutting edge technology. Only the mega firms had them and, even then, there were multiple, inconsistent operating systems. Businesses like Federal Express were in their early stages and service was very limited. 

The pace of changes since the mid-1980's has been geometric. That’s an understatement. My anecdotal observation, however, is that the productivity of lawyers and law firms has not shown proportional improvement. Here is an immediate example: In the last four weeks, there have likely been more video conferences, meetings, depositions and other encounters than in the preceding four years combined. While not perfect or even optimal, the basic ability to do remote conferencing is not something new. Necessity has forced its use and the most skeptical among us (like me) are now convinced that it works. 

The relative efficiency of video conferencing is shocking. Earlier this week, I participated in a deposition which took place about two hours from Richmond. Old defense lawyer habits die hard, so I still track my hours. The entire process was 2.2 hours. If I had had to travel, it would have been three times that – and the client would have incurred the mileage expense. Although I have no objective way to make such a determination, my impression was also that the deposition likely did not take quite as long as it would have if done in person. 

The above is just one example and there are many others. For example, while I doubt there are many law offices that still operate purely with hard files, I know there are 

many where the transition to being paperless is far from complete. Sometimes this is an instance of lawyers simply wanting what they are used to having – and not all of those lawyers are as old as you might think. Both regarding now former colleagues and what I am told about other firms, there are many manifestations of such proclivities – some of them truly ridiculous. One respected defense firm still keeps both paper files in the old way, but also maintains electronic files. Some of its lawyers simply can’t be bothered to learn the technology, so they are accommodated. Being forced to work remotely effectively eliminates resistance, noncompliance, or however you want to describe it. If tolerating such conduct was a luxury before, it is now almost impossible to indulge such demands. 

When this is over, there will undoubtedly be some movement toward doing things as they were done before. But I doubt if it will get back to the baseline of just a few weeks ago – and I doubt we will even get all that close. I say this for several reasons: 

• Even if the restrictions start to abate in a couple of months, inertia and habit being what it is, there will have been enough time for lawyers and law firms to get used to the new ways of operating. 
• Frustrating as learning technology can be – especially for those of us who grew up in analog times – more people will find that embracing it more fully actually makes their lives a lot easier. 
• This forced experiment will likely show that accommodating employees’ need or desire for very flexible work schedules or arrangements is more doable than even the most progressive firms have thought. 
• Along the same lines, from those same people wanting flexibility, there will be a natural resistance to returning to the “old ways” and those firms that try too hard to do so will have trouble attracting and keeping talented employees. 
• In the last few years, practice and document management systems as well as other everyday software applications have become more user friendly. Claims have been made for a long time about software being “intuitive,” but in my experience I have only seen this come to fruition in the last few years – and suspect I am not in a small minority of lawyers. 
• Actual cost savings are likely, meaning firms can reduce overhead expenses without impairing capacity. 

One might say that what I have described above was destined to happen anyway. There is some truth in that. Overall, our business has been moving in this direction for a long time, albeit somewhat irregularly. However, the size and suddenness of what we are dealing with right now is likely to do far more than just accelerate developments that were already in progress. It’s the difference between revolution and evolution. For those lawyers and firms that were behind the technology adaptation curve when this started, the changes could have a devastating impact. Those lawyers and firms with a strong sense of embracing innovation and technology will likely be rewarded. Regardless, it will be no time for the faint hearted or risk averse. 

In a New and More Efficient World, Defense Firms Will Likely Suffer More Than Plaintiff Firms 

First, let me offer my bona fides: I was a defense lawyer for over 30 years and during that time I ended up being the leader of an 18-lawyer firm that was over 70% hourly rate defense work. Through much of that time, we also had a nationwide plaintiffs’ practice taking Federal Tort Claims Act cases relating to medical malpractice, mostly at VA and military healthcare facilities. Now I am a “pure” plaintiffs' lawyer. Suffice it to say, I have a good sense of the business and economics of both sides. 

Efficiency is the plaintiff lawyer’s friend. We all love those instances – admittedly not as many as we would like – where a letter is sent or a claim submitted and is quickly followed by the other side settling on good terms. Little time or expense has been incurred. The client is happy, the plaintiff’s lawyer is rewarded, the insurance company or other entity saved at least the litigation costs, so everyone wins, right? Wrong. In a scenario like this, the defense lawyer loses because he or she makes almost no money. There are not many billable hours in a quick resolution. 

Like contingency fees, hourly rate arrangements are often maligned – and, as with contingency fees, sometimes those criticisms are valid ones. Grossly speaking, hourly rate fee arrangements tend to reward inefficiency. Think of the deposition example I used above. The deposition was 2.2 hours, but if I could bill for travel that would be at least 6.5 hours. Big difference. 

I have often joked that an honest defense lawyer makes money one of three ways: 

1. Having cases with difficult plaintiffs’ lawyers. The lawyer who deposes every witness for hours and who disputes almost everything are characters every defense lawyer has encountered. They can be infuriating – and I have vivid memories of getting very infuriated – but such cases are very lucrative for defense lawyers. 
2. Having co-defendants who flog their files unmercifully. These are the sorts of lawyers who file every motion and do things like spend four hours deposing an economist who did nothing but crunch some numbers. Personally, I often thought that such efforts were ridiculous at best but opting not to participate was usually not an option, so you were dragged along for the ride, which included an obvious financial benefit. 
3. Actually trying cases makes money for defense lawyers. 

While there are a few plaintiffs’ lawyers in the first category, there are not so many that even a very busy defense lawyer can count on seeing them regularly. As an old defense lawyer, it embarrasses me to say that there are far more defense lawyers in the second category. If they were in a case with you, you knew what to expect. As for trying cases, many defense lawyers claim they are not afraid to do so, often exaggerating their trial count and outcomes. The reality is quite different. Many defense lawyers are, in fact, afraid to try cases. Another old joke of mine is about certain defense lawyers being given the choice between trying a case and cutting off a finger; their immediate questions would be “how sharp is the knife and how long will it hurt?” In all fairness, the hesitance to try cases is not totally irrational. Insurance companies can be very fickle. Some say they understand and accept the risks of going to trial, but the same ones have been known to blame their counsel for losses, often unfairly. 

Just as it is for plaintiffs’ lawyers, efficiency is the insurance company’s friend. If such entities can get equivalent outcomes while spending less, it’s entirely logical to assume they will move in that direction. The insurance companies and entities that employ defense lawyers have always been conscious of litigation expenses, including attorneys’ fees. Admittedly, that consciousness can manifest itself in peculiar ways at times, but like all businesses they generally want to reduce costs and improve their profit margins. 

For many carriers, this crisis will likely be a stark lesson in and reminder of the benefits of efficiency. Again, using my deposition example, if a company does not have to buy a lawyer’s whole day for a two-hour deposition, why should it? Apply that to discovery relating to thousands of cases. To some degree discovery practices have been defended by defense counsel as established custom. It’s what works. In person proceedings are more effective. It’s just the way things have always been done. In some form or another I have heard it before – and even offered it up myself at times. I suspect that such an argument will be increasingly less effective as the benefits of efficiency through the effective use of technology become impossible to ignore. As that happens, even the most aggressive defense lawyers – those who “turn over every stone” - will simply have fewer hours to bill. 

I suspect the defense bar is already a bit terrorized by the above prospect. I am hearing repeated reports of malpractice defense lawyers now insisting that even non-party fact witnesses be done in person. Some of the circumstances border on comical, but at the same time I have some sympathy having been a defense lawyer for so many years. Efficiency is not the friend of the defense lawyer – and anyone who has been in that business keenly understands that, regardless of whether they will admit it. 

What may also happen is that the carriers will finally move decisively away from pure hourly rate arrangements. Frankly, in malpractice cases, once you take most of the travel out of the equation, it becomes much easier to do alternative fees. For example, it is not hard to imagine a carrier simply saying it will be a fixed sum of money for a deposition, including preparation and reporting. If you want to do it in person, your effective hourly rate is likely to be significantly less than doing it remotely. 

The defense firms that can adapt to the new order will do okay. However, my prediction is that the transition will be very hard for most defense lawyers. The old ways are just too ingrained. Habits die hard – and I suspect those habits will cause the death of many old and established defense firms. 

When Life Gets Back to Normal, Courts Will Largely Revert to Business as Usual 

I suspect that most courts will not cope well with the current crisis and, accordingly, they will be quick to move back to their old ways of operating when restrictions are reduced. From my observation and reading, no one would accuse most courts of being quick to innovate during our current crisis. There are exceptions, of course, but most are hunkered down in their “emergency” status and not much seems to be getting done. And when things do get done, it is usually because the lawyers on both sides have taken initiative in the process. 

Institutionally, courts tend to be relatively conservative when it comes to changing how they operate – and that is not necessarily a bad thing. Misplaced experiments can have serious negative consequences. Still, I will be surprised if courts show much new enthusiasm for things like remote appearances by counsel or witnesses. Federal courts have typically been better than state courts (in Virginia anyway) about remote appearances, but in federal courts, it is not unusual to have a court insist that counsel show up in person for something as routine as a Rule 16 scheduling conference. In my practice that is why one ends up flying to Los Angeles for a 15-minute appearance on the Monday of Thanksgiving week. I am pretty sure that that judge – who shall remain unnamed – will not have an epiphany and change his ways once we get back to normal. He will not be alone. 

One positive is that we may see state courts finally adopt better and more complete electronic filing processes. This event will certainly show the need. How quickly the systems change after the crisis abates is another matter, however. This is especially true considering the budget constraints faced by many state and local systems. I would love it if the state courts where I practice had something like the federal system, but even with all that is happening, I still do not expect to see it in my legal lifetime. 

The good news is that for most malpractice cases, the impact of a court’s relative inefficiency is limited, just as it is now. Everyone knows how to work around it and that will continue to be the case. While there are occasional outliers, other than trial, most cases do not require extensive interactions with the courts. Hence, I do not think that the relative backwardness of courts will do much to constrain the impact described in the first section. 

Conclusion 

Five years from now I will read this. I do not know whether I will be proud of my insight or laugh at my folly. What I am certain of, however, is that getting through the COVID-19 crisis will produce huge changes in how we do business. Hang on for the ride. It’s likely to be a wild one. Good luck.

#pandemic #socialdistancing #pandemicpreparedness #socialdistance #covidpandemic #socialdistancing2020 #worldpandemic #globalpandemic #wearamask