Illustration by Scott Roberts
In criminal law, “alternative courts are trending,” says Paul D’Agrosa of Wolff & D’Agrosa. “Examples would be: drug courts, DWI courts, mental-health courts, and even a special domestic-violence court. On the federal level, the Department of Justice has issued new guidelines to the U.S. attorneys, giving them leeway not to seek lengthy statutory minimum sentences in nonviolent drug cases.”
Debating Drinks
“I think we’re going to see more litigation involving the three-tier system for selling alcoholic beverages,” says Thomas Schlafly, a partner at Thompson Coburn. “The Commerce Clause in the Constitution gives Congress the authority to regulate interstate commerce, while the 21st Amendment gives states the authority to regulate the sale and transportation of alcoholic beverages within their borders. The courts are going to be asked to resolve the apparent conflicts between these two sections of the Constitution.”
Drilling Down
The biggest news is the energy revolution caused by hydraulic fracturing, a.k.a. fracking, says Armstrong Teasdale partner George von Stamwitz. “The commercial side has moved so fast, it’s jumped ahead of the legal and regulatory side, so there’s a mad scramble to find best practices. What does it mean that they are using so much water, and what risks are there? Some towns have said, ‘We’re not allowing it
until we figure it out.’”
Tort Reform—Road Trip!
“We’re all traveling to the country,” says Kenneth Vuylsteke, a senior partner with Fox & Vuylsteke, who handles personal injury cases. “Since the law changed on the venue, we have to try our cases where the action happened. So lawyers are traveling all over rural Missouri now. We’re getting to know the county courthouses.”
Smart Phones, Dumb Callers
First we figured out that emails could be damning evidence in a lawsuit. Then came social media. Recently, “the trend has further expanded to cellphones,” says John Cowling, a partner at Armstrong Teasdale who works in technology law. “Smartphones can be a gold mine of instant messages, photographs, and location information. Users are surprised to learn that many cellphones contain detailed data, even after the user ‘deletes’ the data.”
Guns Shove Bullies Aside
Never mind bullying, says Andy Leonard of McCarthy, Leonard & Kaemmerer. “The buzzword in school law is ‘safety.’” Mean girls, cyberbullies, and Facebook wars seem almost trivial, now that “suburban schools are putting in metal detectors, using drug dogs, installing cameras, hiring cops.”
Trial Run
“The Missouri Supreme Court has opened the doors to trial in an unprecedented way in the last five years,” says employment lawyer Jim Hacking III. “The court has said that summary judgment should rarely be granted in employment cases. In addition, employees no longer have to show that the discriminatory belief or conduct of the employer was the ‘exclusive’ cause of the termination or harassment, but merely that it was a ‘contributing’ factor.”
Expansions & Contractions
Firms have been busy acquiring or merging with other firms—especially those in other cities. Thompson Coburn merged with Freedman Weisz in L.A.; Stinson Morrison Hecker with Leonard, Street and Deinard in Minneapolis; and Husch Blackwell with Brown McCarroll in Austin, Texas. (The Lowenbaum Partnership refused to merge but did affiliate with FordHarrison, which took the Lowenbaum practice global.)
Checking Up
“Since the Affordable Care Act, there’s been a sharp increase in government oversight of Medicare and Medicaid payments,” says Richard Watters of Lashly & Baer. The government is working hard to get some of its payments refunded, saying the doctor or hospital “didn’t follow the billing and other rules 100 percent,” or “‘This 47-hour hospital stay should have been charged as an outpatient stay, not an inpatient stay’—which costs Medicare less and the patient much more.”
Sharing time
“In the Southern District, there’s been an emphasis on time-sharing advertising fraud,” notes criminal-defense attorney Scott Rosenblum. “Advertising for people who have purchased time shares—typically people who’d made bad investments anyway—and charging them anywhere from $1,800 to $4,000 to sell their time shares on websites. People at call centers were mass-marketing the ability to sell the time share, and the allegation was that the sales pitch basically guaranteed that they already had buyers. Not only were there no buyers, but there was no effort to locate buyers.”
TMI
Michael Kahn of Capes, Sokol, Goodman & Sarachan notes “the ongoing struggle to deal with electronic discovery.” Pre-email, a big lawsuit meant maybe 10,000 documents for one side to produce and the other to review. Today, the same lawsuit would involve hundreds of thousands of documents. “The lawyer time—and legal fees—can exceed the value of the lawsuit itself.” The result’s a new growth industry: companies developing software to manage all those documents.
