Episode 9 – Mental Health and Relationships in the Legal Industry with GrowthPlay [PODCAST]

Rachel and Jessica discuss the new focus on mental health and connection within the legal industry. Deb Knupp from GrowthPlay joins with her expertise and shares how GrowthPlay encourages law firms to get away from transactional practices and instead work toward positive talent and client experiences.

We’ve included a transcript of our conversation below, transcribed by artificial intelligence. The transcript has been lightly edited for style, clarity, and readability.

 

 

INTRO  00:02

Hello, and welcome to Legal News Reach, the official podcast for The National Law Review. Stay tuned for a discussion on the latest trends in legal marketing, SEO, law firm best practices and more.

Rachel  00:15

I’m Rachel.

Jessica  00:17

And I’m Jessica. And we’re the Co-hosts for The National Law Review’s Legal News Reach podcast.

Rachel  00:23

In this episode, we’re excited to talk to Deb Knupp, Managing Director for GrowthPlay. Deb, would you like to introduce yourself?

Deb Knupp  00:28

Well, I would. And thank you all so much for having me. And I have the good fortune of working in a business growth play. And we are a consulting firm that really uses a research and data driven approach to help our clients accelerate revenue, really amplify and elevate talent, and do so all in the context of creating exceptional client experiences. And so I principally work with law firms, we’ve we’ve served more than 50% of the am law 200. And we’re coming upon our 400 Law Firm engagement over the last 20 years. So it’s been a great ride, and what an honor it is to get to be with you guys today.

Rachel  01:11

Well, it’s an honor for you to join us. I’m sure all that expertise will be really useful to our listeners here. So one of the main focuses we wanted to really dial in on here are a lot of the opportunities created by the pandemic and where the legal industry goes from here. I think a lot of times people talk about the challenges of COVID-19. I think less often we talk about, you know, sort of the great opportunities that this pandemic created for the industry. So what do you think will be the greatest lessons learned that could propel the legal industry forward into the best version of itself,

Deb Knupp  01:43

You’ve heard, sometimes people say, you know, let’s not waste a good pandemic, and not get the lessons that we want to learn. And I think that the experience in the legal industry, and really what occurred in March of 2020, like it was across the world really required a certain level of crisis response, and how to navigate and abate fear, and then very quickly engage in what I think will be a pandemic word for the ages pivot to an approach that really allows business to continue and clients to be served. And when you look at some of the more significant things that I think law firms gained or are gaining, having responding to the pandemic is first, I think we obliterated the myth that you have to practice law only in the confines of bricks and mortar. I think that the the idea of having remote work or having a capacity to perform billable work at a quality level, at a responsiveness level, I think for many years pre pandemic, it was often assumed that the quality and the value is going to be achieved when it was done live and in the context of a building. And what I love now is that we have not only seen the continuity of excellence, and responsiveness and value continue to be generated over the last 20 months, I think there’s a lot of evidence to support that maybe we’ve seen an improvement in quality and responsiveness and engagement with clients. So I think in many respects, I think we’ve added another dimension into professional services and billable work delivery, that has the capacity to continue to drive even more value for clients and be incredibly valuable to talent. I think the second thing that the pandemic has certainly taught us is how critical it is to have systems for collaboration and communication. Again, if you look at the light switch, you know, immediately there was a grand exposure of how on networks, many organizations were in keeping connections with both internal relationships and client connectedness. And so again, I think that the heavy investments that were both necessary to remain in business and now I think are vital tools for ongoing connectedness and collaboration, I think we’re going to see a real benefit for the comfort and how we connect with clients. And even looking at us right now, as we’re connecting on a platform, you know, zoom and other virtual and web based platforms, I think there’s a lot of value in building greater depth of intimacy and relationships, greater access, for communication and connectedness. And I think the facilitation of utilizing platforms. Modernizing, if you will, the practice of law through the utility of technology, I think we got a grand, you know, drinking from a firehose kind of moment, to sort of prove that concept. I think the last thing and I think this is an important thing for us to continue to pay attention to, is there’s never been a place in time, at least in my lifetime, where I’ve seen the playing field absolutely levelled when it comes to the integration of work, and a person’s personal life and how we were all universally disrupted. In this space where our human connectedness and the desires and wants and needs for human flourishing, we really saw a reset,

Rachel  05:10

As you sort of alluded to, many law firms have done pretty well. And they perform well financially this past year. So what do you think will be the most important growth priorities for firms as well as sustain that growth long term?

Deb Knupp  05:24

Well, I think first and foremost, to sustain growth is not to believe that a blip is, is going to be consistent. If you’ve seen an inflection in your practice or growth in your practice, and just making the assumption that the volume of work the demand for work, sometimes what we see in times of prosperity is you are tempted to put a lot of investment in things because you anticipate that that pipeline in that workflow is going to have continuity, I think it’s really important to discern what financial growth have you experienced based on pent up demand, that will have a shelf life that will sort of run a course, and then re establish sort of what a new normal level of demand and interests are, and where we have seen innovation drive new lines of revenue, new ways to engage with clients in productive billable work, and really pour your attention into those kinds of services. As a good example, I think law firms have certainly gotten a lot more creative, on how to think about the advisory part or the counseling aspect of the practice of law versus maybe the transactional or dispute related parts of practice of law. So I think our ability to widen the purview of the advisory services, quality Council, and deliverables for which clients are delighted to invest in pay, I think we’re going to see a real opportunity for that kind of prioritization.

Rachel  06:50

So how are firms paying attention to the intersection of client experience and talent experience? And who’s driving that growth?

Deb Knupp  06:57

Well, I think we can say confidently, that those two things are inextricably linked, right. There’s no win, particularly in professional services. And more specifically, within a law firm, I think what we have absolutely gleaned certainly in the last 20 months, but as we even look beyond is that you cannot give away what you don’t possess. And I think that when we look at, if you’ve got an engaged workforce, if you’ve got talent, that loves the work that feels meaning and purpose in their work, they feel like they’re a part of something where their identity into something greater than their own individual practice or own individual contribution. If you’ve got a workforce that is really tuned in to that experience, it absolutely allows you to give a much higher, more high value, a premium way of really elevating what it feels like to be a client. When you are a person who feels invested in you have greater abundance to feel a capacity to invest in others. And so when you look at the intersection of the great resignation, you look at that talent shortages that are certainly come into play. When you look at some of the trend data around associate recruiting and retention, I think it’s incredibly important that law firms continue to see that that has as much to do with billable work and client development and business development, as you may be putting in trying to engage clients and invest in clients and, and do work for clients. And so I think there’s a great level of intersection. And I think law firms that are that are faring really well and will continue to stay in growth are putting as much attention in the talent experience. As we might have seen historically, pre pandemic, a lot of firms really investing what it means to create an unparalleled client experience. So I think these two things are very synonymous and going hand in hand. And I suspect that firms that win in the future will continue to see them as not disparate, but absolutely interdependent as we look ahead.

Jessica  08:58

That’s so great that you mentioned putting that extra energy and work into your clients. And I think that also is going to translate to your workers. Of course, a lot of firms right now are doing the diversity, equity, inclusion or DEI initiatives. They’re just trying to grow their practice to be better and connect with their clients in that way. So what are you seeing as far as DEI? What’s working well, what’s not working? I’d like to get your perspective on that.

Deb Knupp  09:24

I’ll start with just maybe some of the more daunting statistics, I think we have to really pay attention to some of the larger trend lines when you look at the research and data that comes out of, you know, reputable institutions that are looking at, you know, minority corporate counsel and how we’re seeing, you know, business demand and how firms are faring in responding to client or outside counsel, inside in house counsel, looking for their outside counsel to really match and meet diversity expectations. We have not yet fully seen a connectedness play itself out where numbers are increasing retentions increasing the mix of diverse counsel and serving and meeting client demands. We have not seen the lift in performance as of yet. And so the question really becomes, well, why not? Like what what’s missing here? I saw a recent statistic HBr consulting, does an annual law department survey. And as they look at all of the criteria, that out that in house law departments are looking for from their outside counsel, the single biggest jump in prioritization that they saw from their 2020 survey was a 14% increase in dei being a priority for selection and retention of preferred counsel. So demand is there. In house law departments, clients are saying, we want more diversity, equity inclusion, intersections with our firms, we want that and to see it at a double digit of growth and prioritization, I think that if you’re if you’re an outside counsel or private practice, we need to pay attention to this. At the same time, how we show up, though, in response to that, I think is where the innovation, ingenuity and creativity really have to come into play. And so when I think about firms that are doing really well, number one, I think they’re changing the question. The question that underscores a lot of dei initiatives right now is how do we get more women and lawyers of color to equity partnership, and that has been the brass ring of standards. When we think about retention, when we think about growth, it is all been predicated on, we know we’re being successful when we have more women, more lawyers of color in the equity partnership ranks or in the leadership ranks of a particular law firm. And while that is certainly a key indicator of success, if your firm is a destination firm, where lawyers of color and women and and LGBTQ attorneys can thrive. And that’s not the only metric. And in some cases, the desirability of being an equity partner in a law firm may not be the only destination that you might see your diverse talent wanting to move towards. So firms I think are doing well are widening the question, which is to say, what are all the paths of participation that would be desirable to retain the best and brightest diverse talent? What would have to be true about our firm and making those paths available? One path is ownership equity partnership. And are there other pads? Are there other designs of work structure, profile roles, structure compensation structures, that would really allow people who would be considered under the umbrella of diversity for them to want to work, not just based on one singular metric? And I think if we can begin to widen the question to say, What would have to be true about our firm, we’re diverse talent wants to do their best work, I think you’re gonna see a lot more innovation, a lot more adjustments in role design, I think our whole construct of associates and income partners and equity partnership and counsel, I think we’re going to see a shuffling of new jobs to emerge. I think what we think of is full time and flex time, I think we’re gonna see some radical transformations of that, I think how people get compensated, what it means to, you know, be available for various aspects of client service. I’m already starting to see firms start to address that. And I think those are incredibly positive things. I think the last thing that I’d say, again, where there’s still need, but I can tell you that firms are starting to invest in it, I think, a big reason why we’re seeing so much exit and again, pandemic is certainly revealed, you know, a big part of the great resignation has disproportionately impacted women. And I think when you look at the division of labor, and the realities of what it looks like to be a woman at work, who also is a parent or is caring for elderly parents or has a senior parent level of dependent care, we have seen this the statistics are highlighting is there is disparity, there is a significant amount of difference. And so I believe that law firms are really any organizations who can look at the data and say we acknowledge the data, and then design for things where again, not withstanding workforce availability or workforce, job designing in order to really meet the demand. So that resignation is not the only option. I think firms are going to have to start looking at different ways that we can attract and retain on a season of life basis, where people can move in and out of work velocity based on the other demands for time, whether that’s child care, elder care, but I think there’s also other demands on time, you know, based on academic interest or a desire to step away and maybe work in house be in business for a year or two and then returned to private practice. I think this will not only be useful across the entire workforce, regardless of diversity, I do think this is going to have a unique positive benefit. When we apply this in spaces where we’re navigating the retention and growth of individuals who would be considered diverse.

Jessica  15:19

I’m so glad you mentioned all of that, because so much of this labor shortage… I mean, I think a lot of these issues we’re covering today is why this is happening, you know, firms are finally -and I would actually argue any workplace- is finally spending that extra time if they can to put, you know, DEI initiatives as part of their brand, or as part of their firm skeleton, basically, their foundation, and even just taking care of employees differently. I mean, I think for so long companies weren’t really thinking about how can we take care of our employees mental health or, you know, work-life balance, and now that’s such a big focus. And I think it’s for the better in, especially in the legal industry? What are you seeing law firms do in their culture that can benefit or has benefited health and mental health in the workplace.

Deb Knupp  16:12

So first, when it comes to the great work that law firms are doing, I want to I want to highlight something that’s so important. In fact, there was a great research statistic that BTi consulting published is that the the large percentage of clients that have absolutely no idea what your law firm is doing in this space of Dei, and also in the space of employee health and well being. And so I think it’s critical to understand that when if you are a firm that is leaning into these things, and doing a lot to invest, and try to sort and to figure out and to and to be creative and having the freedom to redesign and re reimagine. I think it’s really important that where you were doing that not only making that known to your clients, certainly from a promotion and reputation building, I think it’s also really important to invite your clients into that conversation. I can say that right now, some of the best exchanges that I’m watching is that law firms aren’t trying to design these responses in a vacuum, but they are opening it up to be resourcing benchmarks and best practices from their their clients and other companies and other industries. So that we don’t have to go it alone. So let me just start there by responding and saying, Look, this is a place where there’s a lot of hard stuff going on. So your ability to not make it visible to your clients and also to invite others in. That’s that’s PERS response. More specifically, though, just on the on the construct of the mental health. So when you think about the shadow pandemic, and some of the things that experts are citing, and this is really at the risk of being my namesake of Debbie downer, I’m going to tell you that we need to wake up to this, because I don’t know that we’re talking about this enough, is that many mental health experts are suggesting that the cost and consequence for depression, anxiety, addiction, suicide, that the cost and consequence will be far greater and loss of life, and loss of productivity that we will see the crisis peak in 2024, that there is predictions that more people may lose their lives related to trauma coming out of the pandemic than the people who actually died from COVID-19. Now, if that doesn’t start to get our attention, we got to tile in and say, look, it’s like a tsunami that’s looming out there. And the question is, what are we doing right now? Because even if our own cultures, our own people aren’t a part of that statistic, where they aren’t struggling with trauma with mental health conditions with suicide, the probability that they have a plus one relationship in their life is almost assured that if it is not happening to your talent who works at your firm, I want you to examine how many of them are parents or aunts or nephew or aunts or uncles or grandparents to children between the ages of 18 to 24. At one point during the pandemic 25% of people aged 18 to 24 25%, one in four, contemplated or acted upon suicide. Think about one in four people between the ages of 18 and 24. How many people work at your law firms or your places of business, that have relationships with people in that age, not the least of which thinking about the impact of those incoming first years, who are just just a little older than this particular demographic. Consider this other difficult statistic. When you look at the rise of eating disorders, and the rise of anxiety and depression in diagnosable mental health conditions. Children between In the ages of 14 and 18, saw 300 to 400% increases in these diagnoses. And that doesn’t even take into account all of the other kinds of things that have been looming out there. With regards to social media and the impact of bullying, isolation and various other comparative data that really frightens me and as a parent of three teenage girls, I have to tell you, I’m paying attention to these things. So when a law firm can step back and say, Look, while this may not be happening today, we may not have people right now for whom this is an active issue. If we look ahead to the year 2024, what would we be doing today, in anticipation that this will become a thing for our firm or for our clients, and their plus ones. So my counsel or my recommendation to every managing partner and leader and law firms that I get to work with is to first of all acknowledge that we’re not separated from this. And in many respects, given the nature of billable work and the pressures to Bill and to be productive, that in some cases can exasperate these particular issues at a project at a pretty high clip and high calling. So I think that cultures that are going to be doing really well and addressing this are starting to understand that while we guess our EAP, or employee assistance programs, for access to mental health care, is something that is a baseline table stakes of employee benefits or or talent benefits, that’s a great place to start. I think that we also have to create more opportunities and access to creating conditions so people know how to be with people in suffering, that we that we master the communication techniques that you often learn in therapies, like the technique of validation, how do you hold space for people while they’re suffering? How do you not relegate someone into shame and isolation when they’re struggling with alcohol or drug addiction, or they have someone in their life that is, so I think it’s not only making sure that we have the care and support leaves of absence opportunities for people to have space and flexibility. I think we also have to create cultures that create the destigmatizing. One of my maybe my most compelling experiences during the pandemic, around this particular issue was a law firm that we work with Will the managing partner, in an effort to address the mental health conditions of the team, he himself created communication and visibility to a lifelong battle and struggle that he had had with depression, anxiety, and suicide, and how he made that visible and how he connected Himself to those sets of conditions as a role model. And as a way of saying, Look, you can look upon himself and say he’s the managing partner of a law firm. He’s one of the most successful people’s people in, in this ecosystem, and yet, his willingness to make visible his own journey, and how he’s navigating, and how he continues to create care around this. It’s that kind of courage that I think will allow us all to navigate the shadow pandemic with more grace, more compassion, more empathy, and as a result, more lives will be saved.

Jessica  23:08

I think that’s such a good thing that that attorney did, because mental health in particular, and you know, even in a regular work place, it’s such a silent I guess, the silent visitor, if you will, of people who work it even in a physical office, let alone remote work or hybrid, where you don’t even you already don’t really hear it or see it. But then you have people working remote, it’s harder to reach those people in general. You know, is there a way? What are some specific things firms can do up front to prevent some problems from starting in the first place? Are there any, you know, tactics that specific firm members have used Besides sharing their story? Because that’s a very good, I think, connective way to connect with people.

Deb Knupp  23:55

Absolutely. So I think it’s so in addition to I think creating systems for visibility and messaging, where courageous people can put a face against things that maybe are stigmatized, I think that that’s just as a general sense. Where you have willingness or courageous people who want to be advocates in this space and creating pathways for those stories to be told or those those messages to be shared. I think that that’s that’s a strong value, and will often fall under the umbrella of sort of firm communications. I think a secondary, as I’ve already mentioned, is I think taking a fresh look at your benefits programs and really understanding you know, is there parity and access to mental health coverage and and what does that look like with regards to essential priorities in the benefits plane designs, and how you can come alongside folks who may be struggling in getting proper care. In large part because of financial scenarios. I’ve seen more firms establish what I’d consider most like benevolence related funding such that that people anonymously can or to the firm I’m anonymous, but people can tap into hardship in a way that allows coverage if their benefits plans run out, or if there are not places where that kind of financial reinforcement can be made available. And I think that can be true not only in mental health, but that’s also when you’re navigating home insecurity, you know, food insecurity, and other conditions. So I think those are certainly places to look. I think, additionally, the advent of new benefits. One of my favorite things that I got exposed to during the pandemic, is an organization called home thrive and they they provide elder care, concierge services for eldercare, I think a growing area of depression and anxiety isn’t isn’t a person who is aging parents. The isolation, the shame, the struggle, and knowing how to navigate where parent, your child becomes parent, and how do you navigate that there’s an entire Benefits Service that brings that kind of elder care, concierge service and really helping provide resources to people like me, who have to navigate caring for an aging parent or an aging loved one. And so I think at looking innovatively and how to do that, we saw a lot of that in the childcare space. So again, I think that additions of things like elder care another arena, I’m also noticing a lot of firms are creating, for lack of another sermon, the construct of resource groups, where people can come together around particular areas of affinity, where they may be navigating particular challenges or struggles. So again, when you look at individuals coming together around affinity, where their struggles with maybe diversity related resource grouping, I think is something that’s a little bit more popular and prevalent, certainly has been seen in major corporations, I think law firms are starting to build that into their larger affinity related programming. But I think there’s also resource groups when you can bring community together when it’s navigating, you know, parenting teenage children, or working with seniors and navigating elder care and how to navigate that, or how you navigate some of the challenges that may come with the stability of marriage or, or family dynamics. I think firms that this understand that we need to be our whole self, to our workplaces. And then we need to really examine how we can create space and safety for people to leverage connectedness and community. In some ways, it makes them even more loyal, more connected to your place of work. Because these kinds of extra things are made available to care for the whole person.

Rachel  27:25

I’m so glad we’re talking about mental health today, because I think it’s often important to destigmatize it, I think the more people talk about, especially their own struggles, and they’re not ashamed to find help, but I feel like it’s often like almost an invisible disease. Like if people don’t talk about it, then people don’t know about it. And they feel alone. And I think talking about struggles and ways that companies can really help their employees think is really helpful. So one of the other topics we wanted to touch on a little bit today was more relationship building. So creating and maintaining relationships, legal industry. So what are some ways that law firms, legal marketers can create authentic relationships with clients?

Deb Knupp  28:04

Well, I like to think of this as a starting point, Rachel is that we got to recognize that there’s a very fine line in stalking someone and staying connected to them. And they’re really the distinction that we often say is really in the in the zone of how welcomed is the effort to stay connected, how welcomed is it by the receiver, in wanting to be engaged with you as a firm. And so when we look at legal marketing techniques, and how to frame a client centered, or an other centered approach, to having authentic reasons to stay connected, we find really simply that it can fall under a construct that we call it growth, like the three ends. And the three ends are almost failsafe when you think about these three ends from the receivers perspective. So if you think authentic reasons to connect with a client, or potential client or referral source, you need to have one of these three things in place. So in number one, is invitations. A great way to stay connected to your clients is invite them to things that they would find beneficial, inviting them to be a part of activities, conversations, education scenarios, inviting them to things that lift them up, allow them to, to flourish, to be smarter to be stronger in ways that are welcomed. And so if you want to build a relationship with a client and you want to stay in front of them, one you need to understand what are the kinds of things that your clients like to do? What are the kinds of things that they are aspiring to grow and learn, personally and professionally so that when you are orienting the end of invitations, that you have far more readiness to activate the end of an invitation in a way that will increase the odds that not only will it be received, but it will received and will feel like a relationship investment. Think the second end is the end of introduction. There’s no better way to really cultivate relationships with your clients and potential clients, other than when you’re introducing them to people that they actually want to meet. Now, this the underscoring, is actually want to meet. This is not about ambush introductions, where you decide that two people need to meet and grab coffee or have a conversation. This is though the permission based in of introductions, when you can ask clients, you know, the kinds of people the kinds of service providers the kinds of help that they’re looking for, again, professionally, personally, maybe within the law firm, maybe outside and larger professional services, when you can facilitate the ends of introductions, that a client would actually welcome and find valuable in their network, there’s a real value and it will feel like a relationship investment. The final end of the three ends is insight or information sharing. And so once again, if you can create an inventory of insights, that allow your clients to be smarter your clients to be lifted your clients to have benchmarks, or you can seek insights, meaning the inquiry of voice of the client research, that exchange of insights and information, again, as long as it’s welcomed, and it’s on point with something that the receiver would like to receive. When you do that, and you dial in with that kind of sharing or inquiry. Again, it feels like a relationship investment. So I think the answer in any kind of ongoing sustainable relationship investment is to pay attention to the three ends, and making sure again, that they’re tailored to the receivers. perception of value.

Rachel  31:33

I wonder if you could also talk about what some of the key like, x-factors are in terms of like legal marketing at law firms.

Deb Knupp 31:40

We know we’ve talked a little bit already about talent experience and client experience, which are often referred to as sort of CX, which would be an x-factor for client experience when TX or EX is sometimes you see it for employee experience or talent experience. And so I think those are two that we need to be paying attention to. And really, again, at the intersection of how those things are informed, I can tell you that there are a few other x-factors that I think are really important to examine and integrate. When we look at things like brand experience, when you think about what it feels like to be in your ecosystem, on your website, receiving your your press releases, you know, being on your news feeds, and your newsletters, and hearing about the things that you’re promoting the accolades, the awards, the causes, the charity things, the pro bono things you’re doing. All of those things sort of underpin this construct of a brand experience, where you can not only engage brand experience, for the purposes of getting more recognition, you actually can look at your BX brand experience in giving more inspiration to others. Of course, I would be remissed a growth play, we often look at the RX, which we refer to as the revenue experience, or the sales experiences it might be in recognizing that when you’re engaging in your go to market strategies, in the name of business development, that the revenue experience doesn’t have to feel like an exercise of trying to strong arm or manipulate somebody to give you something, you actually can have that experience feel like an act of service. And when you design and plan for when you leverage all of your business generating to leave the prospect or that or that referral source in a better space, utilizing the three ends that I mentioned earlier. And investing in that prospect or referral source, the revenue experience not only will allow you to get revenue, it will also allow you to give that value of wisdom in a way that will leave a mark. And finally, when we look at revenue experience, it is about getting revenue, it’s about getting the sale, but it’s also about giving the deposit of wisdom. So you can look at the interplay of those 4x factors, I think you begin to see brand new avenues and channels that could lead to generating opportunities overall for growth.

Rachel  33:53

How does that then play into some of these, you know, G3 selling strategies that we’ve spoken about, that legal marketers can focus on? Well, when you look at the construct of getting things, I think I get strategy, which is one of the G’s, and clearly is something that needs to be paid attention to. And we’ve got to always be replenishing our pipeline to look for that net new opportunity to bring the client in. So I get Strategy is a strategy of prospecting, referral, generating, pursuing targeting, engaging until such time as there’s billable work. I think that the other two G’s or something just to highlight quickly, I think there’s also a real strong importance on your growth strategy. A lot of law firms talk about the benefit of cross selling, but yet not always as impactful or effective. So when you think about the strategy of grow, for purposes of cross selling, we need to be looking at that strategy with a keen eye because the cost of sell is considerably lower. And we’ve got to look at the infrastructure around cross selling or growth of an existing client to make sure we’re not falling into the impediments or traps of how do you recognize people are incentivized or create collaboration in a way that’s really in service to clients. Think the last few years the guard strategy, this is probably the area that gets most overlooked. And I think the pandemic really brought to life, how important existing clients are, and how important it is to love on your existing clients. And so guard strategies really are all about not taking an existing client for granted. You may have a very large market share or be the law firm, to a particular client and have all of their legal spend. The question though, is what are you doing to protect that? How are you re originating that work? How are you investing in protecting that client relationship and looking for new innovation, new value, and new ways to really build loyalty, so that there’s inoculation against competition? Because I can say that when clients shift law firms, it’s not usually only because they’re unhappy about the legal service, or they’re unhappy about the rates, a lot of times they leave, or they look to get new counsel, because they’re being ignored, or taken for granted. So G three is about getting, it’s about growing, and it’s about guarding. And when we can look at the revenue strategies that go with those three things. I think there’s real power and lifting many people to contribute positively affect revenue that would come from any one of his three G’s.  Excellent. We’ve had a great conversation today on mental health and well-being in the egal industry. So thank you to Deb Knupp from GrowthPlay for joining us today.

OUTRO  36:32

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What Should Your COVID-19 Vaccination/Test Policy Contain?

Every employer who employs at least 100 employees is anxiously awaiting the decision from the United States Supreme Court on OSHA’s Vaccination and Testing Emergency Temporary Standard (ETS). One thing that cannot be avoided is having a policy in place/ready to go given that the January 10, 2022 enforcement date from OSHA is here.

Specifically, the ETS requires employers to have a written policy on COVID-19 vaccinations. Employers are able to decide whether to have a policy that mandates vaccinations for employees. Such a policy must address the following:

  1. The requirements to be vaccinated against COVID-19,
  2. Exclusions for medical reasons/accommodations based on disabilities and/or religious beliefs,
  3. Information required to be submitted regarding the employee’s vaccination status and how to provide the information to the employer,
  4. Paid time for vaccination purposes (up to four hours of leave for each dose that is not deducted from the employee’s leave bank) and sick leave for the vaccine’s side effects of up to 2 days (which can be deducted from the employee’s leave bank, if leave is available),
  5. Obligations to notify the employer of a positive test result and removal COVID-19 positive employees from the workplace, and
  6. Discipline for failure to comply with the policy.

For employers who choose not to mandate vaccines, they still have to have a policy that provides for the information above but allows employees to choose to submit to weekly COVID-19 testing and wear a face covering. Notably, of course, the weekly testing obligation for those who are not vaccinated is not in effect until February 9, 2022. However, if the ETS survives Supreme Court scrutiny (oral arguments were held last Friday, January 7, 2021), employees who report to the workplace weekly must submit to testing once every 7 days or within 7 days of reporting to the workplace if they do not work in person weekly.

The policy should inform employees of the testing obligation and that employees cannot both self-administer and self-read a test unless at least one step is observed by the employer or an authorized telehealth proctor.

With no guarantee as to how and when the Supreme Court will rule and given these enforcement dates, it is past time for employers to be developing their policies, collecting vaccination information, and informing employees who are not fully vaccinated, that they will be required to wear face coverings (and that weekly testing will begin in February).

© 2022 Foley & Lardner LLP

Article By Carrie Hoffman of Foley & Lardner LLP

For more articles on vaccination, visit the NLR Coronavirus News section.

COVID-19: Cameras in The Courtroom: Public Access to Appellate Proceedings Post-COVID-19

INTRODUCTION

While federal and state appellate courts have historically been cautious about allowing cameras in the courtroom, the COVID-19 pandemic has pushed courts toward live audiovisual broadcasting to preserve public access to proceedings. Appellate courts’ new practices for virtual arguments and live audiovisual broadcasting1 present expanded opportunities for client engagement in the appellate process.

HISTORY OF PUBLIC ACCESS TO APPELLATE PROCEEDINGS

The founders did not countenance secret justice, believing that the operations of the courts were “matters of utmost public concern.”2

In the early years of the federal judiciary, Supreme Court justices lived this value when they rode circuit—traveling the country and hearing appeals in different courts. This allowed the public to view courtroom proceedings, showing the ways in which the new government, and its appellate judges, could serve their needs.3 Since circuit riding ended, however, both federal and state judiciaries have lagged in ensuring public access to court proceedings.

Only in 1980 did the Supreme Court first recognize a constitutional right to courtroom access. In Richmond Newspapers, Inc. v. Virginia,4  a criminal defendant on trial for murder asked that the courtroom doors be closed to the public, and the judge granted that request.5 A local newspaper sued, raising the issue of whether the public had a right to access the trial court’s proceedings.6 The Supreme Court said yes: The press and the public have a First Amendment right to access criminal trials.7 

The public may have the right to attend criminal trials, but the Fourth Circuit is the only federal court to hold that the public has a constitutional right to attend appellate court proceedings.8 The Ninth Circuit and Seventh Circuit, the only two other federal courts to address the issue, stopped short of finding a constitutional right, instead concluding that there is a presumption of public access to appellate proceedings.9 Among the states, about half have general and presumptive “open court” constitutional provisions or statutes.10 Only six states have specifically addressed the issue of public access to appellate proceedings — Connecticut, Maine, Missouri, New Mexico, and Rhode Island each have rules of appellate procedure that call for public access to appellate court proceedings.11 The Florida Supreme Court recognizes a “presumption of openness [that] continues through the appellate review process.”12 The Nevada Supreme Court has stated that it agrees with other courts’ recognition of a public policy towards public access to appellate proceedings.13

Even among appellate courts that recognize or practice public access, however, there has been disagreement as to whether that access should include live audiovisual broadcasting.

APPELLATE COURTS’ CONCERNS ABOUT CAMERAS

Until recently, many, if not most, litigators, judges, and scholars opposed allowing cameras in the courtroom.14 They worried that lawyers and judges would grandstand in the presence of cameras, becoming more dramatic, argumentative, or long-winded knowing that their image was being broadcast on television.15 Other lawyers and judges might feel self-conscious and limit their arguments or their questions.16 Justice Kennedy expressed concern that allowing audiovisual broadcasting in the Supreme Court would encourage lawyers and justices to engage in sound bites rather than make legal arguments.17

Another concern has been that cameras would create a “circus” atmosphere and undermine the seriousness of or politicize the matter before the court.18 The American Bar Association in 1937 drafted a model rule for state bar associations that admonishes judges:

Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the courtroom, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.19

This rule—or, more accurately, ban—was adopted by all federal jurisdictions and all but three states.20

Incremental change began in the 1980s. After demonstrations urging the Supreme Court to permit cameras in the courtroom and a letter from C-SPAN offering to help make that a reality, Chief Justice Rehnquist formed an ad hoc committee in 1988 to study the issue.21 From 1990 to the mid-2010s, federal circuit and state supreme courts began to explore the idea of cameras in the courtroom. A pilot program began in 1991 in which the Second and Ninth Circuits televised appellate arguments.22 While the program did not result in the Judicial Conference mandating cameras in all courtrooms, the Ninth Circuit was permitted to continue using cameras.23 State supreme courts followed similar test-and-see approaches. The Pennsylvania Supreme Court, for example, spent six months testing audiovisual broadcasting before formally approving oral arguments to be broadcast live on the Pennsylvania Cable Network.24

Nonetheless, many courts remained cautious about allowing cameras in the courtroom. For example, the Alabama Canons of Judicial Ethics prohibit live audiovisual broadcasting of proceedings unless authorized by the presiding judge.25 Such authorization requires obtaining advance consent from the attorneys who would be recorded and establishing a plan to ensure that the live broadcasting will not detract from the “dignity of the court proceedings.”26 The Fourth Circuit, despite having expressly recognized the public’s right to access appellate proceedings, refused to permit cameras in its courtrooms, instead opting to broadcast only audio of oral arguments.27

Such hesitancy has largely evaporated during the COVID-19 pandemic.

THE RISE OF LIVE BROADCAST VIRTUAL ORAL ARGUMENTS DURING THE PANDEMIC

The COVID-19 pandemic pushed judicial proceedings, including appellate proceedings, onto virtual platforms. This encouraged appellate courts to consider their commitments to open access and adjust accordingly. Federal courts, including the Supreme Court, instituted live audio broadcasting.28State supreme courts took this opportunity to bring cameras into the courtroom.

Now, nearly two years into the COVID-19 pandemic, 38 out of the 50 state supreme courts are offering live audiovisual broadcasting of oral arguments:

Alaska

Arizona

Arkansas

California

Colorado

Connecticut

Delaware

Florida

Georgia

Hawaii

Idaho

Illinois

Indiana

Iowa

Kansas

Kentucky

Louisiana

Maryland

Massachusetts

Michigan

Minnesota

Mississippi

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Ohio

Oregon

Pennsylvania

South Carolina

Tennessee

Texas

Washington

West Virginia

Of the states that have adopted a live audiovisual broadcasting system in response to the COVID-19 pandemic’s impact on court access, public engagement has greatly increased. For example, hundreds of viewers logged on to the Hawaii Supreme Court’s first-ever live audiovisual broadcast oral argument regarding a water rights case.29 Will a return to in-person arguments prompt retrenchment, or is the genie now out of the bottle? We cannot know for sure, but fear of the unknown and dark predictions of grandstanding have lost much of their power in the debate over cameras in the appellate courtroom.

HOW PUBLICLY ACCESSIBLE, VIRTUAL ORAL ARGUMENTS HELP CLIENTS

Live audiovisual access to appellate proceedings promotes public access and transparency. No audience has a bigger stake in these proceedings than the clients that are a party to them. Here are just a few ways they benefit from audiovisual access:

  • Attorneys can share recordings of or links to live audiovisual broadcasts with clients that are new to appeals, so they can learn what to expect of the proceedings.
  • Clients no longer have to travel to watch oral argument, saving them significant money and time.
  • Clients can view the work of counsel they are interested in hiring, the approach of opposing counsel, and the ways in which appellate judges and justices engage with attorneys, all of which audio recordings and written transcripts only imperfectly reveal.

Clients should, therefore, welcome this development and encourage its continuation.

1 This client alert uses the term “live audiovisual broadcasting” to describe both live television broadcasts and livestreaming of video as well as audio content via the Internet.

2 Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 839, 98 S. Ct. 1535 (1978); see also JOHN ADAMS, A DISSERTATION ON THE CANON AND THE FEUDAL LAW, NO. 3 (1765), https://founders.archives.gov/documents/Adams/06-01-02-0052-0006 (last accessed Jan. 3, 2022) (“[L]iberty must at all hazards be supported. . . . And liberty cannot be preserved without a general knowledge among the people, who have a right from the frame of their nature, to knowledge . . . of the characters and conduct of their rulers. Rulers are no more than attorneys, agents and trustees for the people; and if the cause, the interest and trust is insidiously betray[ed], or wantonly trifled away, the people have a right to revoke the authority, that they themselves have deputed, and to constitute abler and better agents, attorneys and trustees. And the preservation of the means of knowledge, among the lowest ranks, is of more importance to the public, than all the property of all the rich men in the country.”).

3 David R. Stras, Why Supreme Court Justices Should Ride Circuit Again, 91 MINN. L. REV. 1710, 1716–17 (2007).

4 448 U.S. 555, 100 S. Ct. 2814 (1980).

5 Id. at 559–60.

6 Id. at 562–63.

7 Id. at 580.

8 United States v. Moussaoui, 65 F. App’x 881, 890 (4th Cir. 2003) (“[T]he First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”).

9 United States v. Sedaghaty, 728 F.3d 885, 892 n.2 (9th Cir. 2013) (recognizing a “strong public policy in favor of public access to judicial proceedings” to explain why it heard nearly all of the issues on appeal in open court); In re Krynicki, 983 F.2d 74, 75–76 (7th Cir. 1992) (“Judges deliberate in private but issue public decisions after public arguments based on public records. . . . Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat; this requires rigorous justification. . . . Public argument is the norm even, perhaps especially, when the case is about the right to suppress publication of information.”).

10 ALA. CONST. ART. I, § 13; COLO. CONST. ART. II, § 6; CONN. CONST. ART. I, § 10; DEL. CONST. ART. I, § 9; FLA. CONST. ART. I, § 21; IDAHO CONST. ART. I, § 18; IND. CONST. ART. I, § 12; KY. CONST. § 14; LA. CONST. ART. 1 § 22; MISS. CONST. ART. III, § 24; MONT. CONST. ART. II, § 16; NEB. CONST. ART. I, § 13; N.C. CONST. ART. I, § 18; N.D. CONST. ART. I, § 9; OHIO CONST. ART. I, § 16; OKLA. CONST. ART. II, § 6; OR. CONST. ART. I, § 10; PA. CONST. ART. I, § 11; S.D. CONST. ART. VI, § 20; TENN. CONST. ART. I, § 17; TEX. CONST. ART. I, § 13; UTAH CONST. ART. I, § 11; WA. CONST. ART. I, § 10; W.VA. CONST. ART. III, § 17; WYO. CONST. ART. I, § 8; IOWA CODE § 602.1601 (2018).

11Conn. R. App. P. § 70-9; M.R. App. P. 12B(e); Miss. Sup. Ct. Op. R. 20.02(c); N.M. R. App. P. 12-322; R.I. Sup. Ct. R. 22(b).

12Barron v. Fla. Freedom Newspapers, 531 So. 2d 113, 118 (Fla. 1988).

13Whitehead v. Comm’n on Jud. Discipline, 111 Nev. 70, 119–21 (Nev. 1995) (citing In re Krynicki, 983 F.2d at 75, and Barron, 531 So. 2d at 118,, in justifying its decision to refuse to seal its review of charges of judicial misconduct).

14 Nancy S. Marder, The Conundrum of Cameras in the Courtroom, 44 ARIZ. ST. L.J. 1489, 1514–17 (2012).

15 Id. at 1514.

16 Id. at 1515.

17 Id. at 1514–15.

18 Id. at 1517.

19 ABA CANONS OF PROFESSIONAL ETHICS, CANON 35 (1937); see also Richard B. Kielbowicz, The Story behind the Adoption of the Ban on Courtroom Cameras, 63 JUDICATURE 14, 14 (1979).

20 Kielbowicz, 63 JUDICATURE at 14.

21 Lysette Romero Córdova, Will SCOTUS Continue to Livestream Oral Arguments and are Cameras Next? Let’s Hope So., AM. BAR ASS’N (Aug. 24, 2021), https://www.americanbar.org/groups/judicial/publications/appellate_issue….

22 History of Cameras in Courts, U.S. Cts., https://www.uscourts.gov/about-federal-courts/judicial-administration/ca… (last accessed Jan. 3, 2022).

23 Id.

24 Amy Worden, Pennsylvania Supreme Court to Allow Cable TV Cameras, PHILA. INQUIRER (Aug. 15, 2011), https://www.inquirer.com/philly/news/breaking/20110815_Pa__Supreme_Court….

25 Ala. Canons Jud. Ethics 3.A(7); 3.A(7B), https://judicial.alabama.gov/docs/library/rules/can3.pdf (last accessed Jan. 3, 2022).

26 Id.

27 Electronic Device Policy, U.S. Ct. of Appeals for the Fourth Cir., https://www.ca4.uscourts.gov/oral-argument/visiting-the-court/electronic… (last accessed Jan. 3, 2022).

28 U.S. Sup. Ct. Audio Broad., https://www.supremecourt.gov/oral_arguments/live.aspx (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the First Cir. Audio Broad., https://www.youtube.com/channel/UCiq_Kg0zEPrjMFK_s-KP5_g (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Second Cir. Audio Broad., https://ww2.ca2.uscourts.gov/court.html (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Third Cir. Audio Broad., https://www.youtube.com/channel/UCLSXp4JMYiFc7BHD_ln3d-w (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Fourth Cir. Audio Broad., https://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Fifth Cir. Audio Broad., https://www.ca5.uscourts.gov/ (last accessed Jan. 3, 2022) (audio broadcast links posted weekly); U.S. Ct. of Appeals for the Sixth Cir. Audio Broad., https://www.ca6.uscourts.gov/live-arguments (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Seventh Cir. Audio Broad., https://www.youtube.com/channel/UCWvXsHlWdsIJHy3R_znCUsA (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Eighth Cir. Audio Broad., https://www.ca8.uscourts.gov/ (last accessed Jan. 3, 2022) (audio broadcast public access telephone numbers posted weekly); U.S. Ct. of Appeals for the Tenth Cir. Audio Broad., https://www.youtube.com/c/theuscourtofappealsforthe10thcircuit (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Eleventh Cir. Audio Broad., https://www.ca11.uscourts.gov/live-streaming-oral-arguments (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Dist. of Columbia Cir. Audio Broad., https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20Calenda… (last accessed Jan. 3, 2022); U.S. Ct. of Appeals for the Fed. Cir. Audio Broad., https://www.youtube.com/channel/UC78NfBf28AQe3x7-SbbMC2A (last accessed Jan. 3, 2022). The Ninth Circuit is the only federal appellate court to date to offer audiovisual broadcasting. U.S. Ct. of Appeals for the Ninth Cir. Audiovisual Broad., https://www.youtube.com/c/9thCircuit (last accessed Jan. 3, 2022).

29 Madison Adler & Allie Reed, All U.S. Appeals Courts Embrace Argument Streaming Due to Covid, BLOOMBERG (Aug. 4, 2020), https://news.bloomberglaw.com/pharma-and-life-sciences/all-u-s-appeals-c….

Copyright 2022 K & L Gates

Article By Robert B. Mitchell and Monica A. Romero of K&L Gates

For more articles on COVID-19 in the courtroom, visit the NLR Coronavirus News section.

Petitioner Succeeds in Wiping Out Challenged Claims at PTAB

Background

In Micron Technology Inc. v. Godo Kaisha IP Bridge 1, IPR2020-01007, Paper 36 (P.T.A.B. Dec. 1, 2021), the Patent Trial and Appeal Board found claims 1−17 of U.S. Patent No. 6,424,041, which described semiconductor devices designed to prevent copper from diffusing from wiring into memory storage regions, unpatentable. The Board’s decision, which determined that the claims were unpatentable as obvious in light of the prior art, undertook both a claim construction and obviousness determination.

Claim Construction

The Board’s decision construed two terms: “memory storage portion” and “copper-diffusion blocking means.” The primary dispute regarding “memory storage portion” was whether it must contain “access circuitry.” The Patent Owner argued that the “memory storage portion” must include access circuitry. After reviewing the specification, the Board construed “memory storage portion” to mean “the region where at least the components that are used for the storage of information are located” and determined that no access circuitry was required. Id. at *23. Then, the Board took to determining the meaning of the term “copper-diffusion blocking means,” which was a means-plus-function limitation under 35 U.S.C. § 112. To construe this term, the Board determined what the claimed function was and identified the structures or materials disclosed in the specification that corresponded to the means for performing that function. Considering the specification, the Board agreed with the Petitioner’s proposed construction that the claimed function of the term was “blocking copper diffusion from said wiring portion toward said memory storage portion,” and the corresponding structures were a ceiling film or a vertical wall, and equivalents of these. Id. at *28.

Obviousness

The Board determined that Petitioner made a sufficient showing that claims 1−17 would have been obvious in light of two prior art references, Kishii and Ryan.

The parties disputed whether Kishii taught “a memory storage portion on a main surface of said semiconductor substrate.” Id. at *32. The petitioner argued that Kishii’s stacked fin capacitor was a memory storage portion. The patent owner disputed this contention, arguing that the petitioner did not show that Kishii’s capacitor stored information and the stacked fin capacitor may be used for a different purpose in dynamic random-access memory (“DRAM”), such as a decoupling capacitor that does not store information. Petitioner offered expert testimony, which cited examples where a stacked-fin capacitor had been previously used in a DRAM memory cell, as opposed to decoupling circuitry. The Board was persuaded by Petitioner’s expert and found Kishii’s stacked-fin capacitor was a portion or component of a semiconductor device that stored information.

Next, the Board determined that a person of ordinary skill in the art would have been reasonably motivated to combine Kishii and Ryan to teach using a copper wire, as required by claim 1, given Ryan’s teaching that copper was a preferred material for such interconnect layers due to its low resistivity, low cost, and enhanced reliability. The Board found the final limitation of claim 1 was taught by Kishii, which was determined to teach a protective film that was “structurally indistinguishable” from the ’041 patent and performed the same claimed function as claim 1 required.

Additionally, the Board determined that petitioner made a sufficient showing that claims 13 and 14 would have also been obvious over Liang and El-Kareh. Claims 13 and 14 added the claim limitation – “wherein the memory storage portion is a memory storage portion for accumulating and releasing charges according to information.” Id. at *59. Combining the prediction from El-Kareh that protection against degradation would be necessary, and Liang’s ability to protect against said degradation, the Board determined that the two references taught a reasonable expectation of success for the limitation of claims 13 and 14.

© 2022 Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

Article By Emma N. Ng, Shannon M. Patrick and Amanda K. Murphy, Ph.D. of Finnegan

For more articles on IP, visit the NLR Intellectual Property section.

Will A Starbucks Union Affect Your Morning Cup Of Coffee?

Many among us can’t face the day ahead until they get their morning fix of caffeine, and Starbucks is a popular choice for procuring a morning beverage. While the coffee chain giant has long been known for employee perks and strong employee culture, some baristas in Buffalo, New York, recently formed the first union at a corporate-owned Starbucks store. The employees cited problems associated with understaffing, among other things.

The union’s recent election victory means that Starbucks will have to sit down and negotiate in good faith a collective bargaining agreement to cover the terms and conditions of those workers’ employment. Depending on the terms negotiated, believe it or not, changes to how and what you can order at a unionized café may be on the horizon.

Labor agreements typically cover wages, insurance benefits, grievance and arbitration procedures, workplace policies, and a host of other issues affecting employment. The employer and union go through negotiations to come to an agreement on specific language on each of the terms and then those terms control. For example, if a company agrees in a collective bargaining agreement that it will have a minimum staffing level for a shift, then a union can file a grievance seeking damages if the employer fails to keep staffing levels at the minimum. In a non-union setting, this typically is not a concern due to the absence of a grievance and arbitration procedure.

One item that could be of interest to coffee drinkers if it comes up in negotiations is limits on coffee orders. Baristas in Buffalo cited burnout from extensive mobile orders that allow customers to preorder and then pick up drinks and food at the café. The workers believed the volume was too much to keep up with. Custom orders – such as a latte with non-fat milk, two pumps of vanilla, one pump of mocha, and exactly two ice cubes – have been a point of frustration for baristas as well. The union may propose limits on the number of mobile orders a barista can be required to accept per hour and additional limits on the amount of specialty modifications that can be made to a drink. In other words, you may not be able to place a mobile order at the time you want or get all the customizations you desire if ordering from a location restricted by such an agreement. That doesn’t mean Starbucks needs to (or will) agree to those proposals, but based on the employee complaints we’ve seen, it’s likely to be an issue at the table – so it’s possible such a provision could make its way into a labor agreement.

We’re now seeing more union petitions being filed at Starbucks stores around the country, including in Chicago and Boston. To the extent we see a national wave of Starbucks cafés getting unionized, your morning cup of coffee may look different in 2022 and beyond.

© 2022 BARNES & THORNBURG LLP
For more articles on unions, visit the NLR Labor & Employment section.

“Key Legislative Limits to Nuisance-Based Attacks on the Right to Farm Live on.”

The North Carolina Chamber of Commerce, through its “Ag Allies: Landscape-Shifting Legal Developments” webinar on August 18, 2021, featured North Carolina’s Right to Farm Act (the “Act”), and appropriately so, as it has been at the forefront of North Carolina law and politics over the past few years.

Agribusiness is the backbone of the North Carolina economy, accounting for 17.5 percent of total jobs and having a total estimated economic impact of over 95 billion dollars in 2019 alone.  The evidence suggests that this impact has, despite recent challenges, only grown since then.  However, the agricultural operations that make up this market have a unique impact on the land and on their neighbors as noise, odor, storage, and dangerous equipment and structures are all unavoidable parts of agriculture.  These effects are compounded by the fact that many agricultural operations are located in rural areas in close proximity to residential zones.  This mix has long resulted in tensions, and those tensions can come to a head in lawsuits for nuisance.  “Nuisance” is a legal claim that allows for the recovery of damages for unreasonable interference with the use of one’s land.

This presented a particular problem for North Carolina agricultural operations, especially meat production.  These and other agricultural operations were deemed too valuable to be left subject to nuisance actions without some protections, and the North Carolina General Assembly sought to help by passing the Act in 1979.  Its stated objective was to decrease losses to the State of its agricultural and forestry resources by curtailing the situations in which agricultural and forestry operations could be deemed a nuisance.  The Act featured prominently in the recent mass nuisance litigation brought by over 500 plaintiffs against Murphy-Brown/Smithfield and the threat that future litigation like it presented for the State’s agribusiness industry.  Ultimately, the Act did not serve to protect the defendants from substantial jury verdicts, prompting the General Assembly to revisit and strengthen its protections.

The Act received boosts from the General Assembly through amendments in 2017 (capped recoverable damages to the fair market value of a plaintiff’s property) and in 2018 (narrowed who can bring a nuisance lawsuit against a farm and the time in which they can bring a nuisance suit).  But these boosts were not without opposition.  In 2019, three non-profit organizations filed suit challenging the 2017 and 2018 amendments.  The organizations argued that the amendments, on their face, violated North Carolina’s Constitution.  Facial constitutional challenges require proof that the law in question is unconstitutional in all of its applications.  A court cannot strike down the law if there is any “reasonable ground” to uphold it.  Finding the organizations had failed to state a claim, the trial court dismissed the organizations’ suit.  After their challenge was dismissed, the organizations appealed their case to the North Carolina Court of Appeals.  In upholding the trial court’s dismissal of the organizations’ suit, the Court of Appeals held that Plaintiffs’ had failed to state a legal claim and that the amendments in question do not violate North Carolina’s Constitution on their face.

Here are the highlights of the arguments presented in the appeal:

  • The organizations argued on appeal that the amendments violated private property rights under the Law of the Land Clause contained in the State’s Constitution, which prohibits a person from being deprived of life, liberty, or property except as allowed “by the law of the land.”  The Court disagreed.  It found the amendments to be reasonably necessary to promote a public benefit (through limiting nuisance claims against the State’s agricultural and forestry operations).  It also determined that the amendments’ interference on property use rights to be reasonable.
  • In response to the organizations’ argument that the amendments exceeded the authority of the State’s police power, the Court pointed to North Carolina’s historied interest in preserving and promoting agricultural and agricultural-related industries and found the amendments to be within the scope of the State’s police power.
  • The organizations also argued that the amendments violated the fundamental right to enjoy property.  In disposing of that argument, the Court noted the organizations had not alleged a taking by the government and reiterated its conclusions regarding the facial constitutionality of the amendments.
  • Another provision of the State’s Constitution at issue in the appeal was the prohibition on the General Assembly from enacting local, private, or special acts (as opposed to generally applicable laws) concerning the abatement of nuisances.  The organizations took the position that the amendments provide private protections to the hog industry.  The Court disagreed, noting that the amendments generally apply to the agricultural and forestry industries and are not limited to a particular subset of those industries or groups within them.
  • Finally, the organizations asserted that the 2017 amendment, which capped recoverable damages, violates the constitutional right to a trial by jury.  In rejecting their position, the Court cited the General Assembly’s power to modify the State’s common law by statute to define what remedies are recognized by law.  The Court then pointed to statutory caps on recoverable damages that the General Assembly had enacted for other civil torts.

In affirming the trial court’s dismissal of the organizations’ lawsuit, the Court delivered a “win” to the State’s agricultural and forestry industries by upholding the amendments’ limitations on nuisance claims.  Only time will tell whether the win it delivered will stay on the books.  The Court’s ruling was limited to considering the facial challenges the organizations had presented in attacking the amendments.  The Court was not tasked with evaluating whether the amendments would withstand an-as applied constitutional challenge, and it remains to be seen how the Court would rule if asked to consider an as-applied challenge.  Still, the ruling is an encouraging nod to the important role the agricultural and forestry industries play in North Carolina and the State’s interest in protecting those industries.

© 2022 Ward and Smith, P.A.. All Rights Reserved.
For more about North Carolina law, visit the NLR North Carolina jurisdiction page.

The OSHA Mandate — Supreme Court Oral Argument Preview

Tomorrow morning (Friday, January 7), the Supreme Court hears oral argument in the OSHA (10 a.m. EST) and CMS (11 a.m. EST) mandate cases.  (You can listen to the arguments live here.)  For the OSHA mandate, one group of petitioners consists of a coalition of twenty-seven States, led by Ohio, and the other consists of a coalition of business associations.  We’ve read the briefs, and here are our issues to look out for tomorrow:

Whether OSHA may only regulate occupational dangers.  The petitioners argue that because the OSH Act and OSHA regulations are all concerned with occupational hazards, OSHA cannot regulate against a virus presenting a risk to all Americans.  Meanwhile, OSHA argues that the OSH Act is not limited to dangers that are workplace-specific, especially given Congress’ previous endorsement of OSHA’s measures to encourage vaccination against bloodborne pathogens.

Whether COVID-19 is a “grave danger” that represents a “new hazard.”  The States argue that the OSH ACT limits “grave danger” to those “from exposure to substances are agents determined to be toxic or physically harmful,” connoting toxicity and poisonousness.  Thus, it cannot refer to airborne viruses that are “both widely present in society” and “non-life-threatening to a vast majority of employees.”  OSHA argues that the statute’s disjunctive phrasing allows for an ETS targeting viruses that are physically harmful, or a “new hazard, even if not technically “toxic” in nature.

Whether there is an “emergency” to justify the ETS.  The petitioners continue to argue that nothing significant has changed over the past year the country had been living with the virus to justify finding an emergency.  OSHA responds by pointing to problems presented by the return to work, the Delta variant, and COVID fatigue.

Whether the ETS is “necessary.”  The States argue that the OSH Act imposes a higher standard:  while other regulations may be merely “reasonably necessary or appropriate,” the Act requires emergency regulations to be “necessary”—which the States read as essential or indispensable.  According to the States, the delay between the issuance of the ETS and the time it was supposed to go into effect dooms any argument that it is necessary.  The business associations, for their part, stress that OSHA could have gone through notice and comment proceedings months ago.  In OSHA’s view, the statute is not nearly so narrow and it is enough that workplaces contribute substantially to the spread of the virus and that vaccines are the best way to fight COVID-19.

The scope of relief.  The petitioners obviously want to stay the entire mandate—both the vaccine and masking/testing requirements.  OSHA argues that any stay should be limited to the vaccine requirement.

Major-questions doctrine and federalism canon.  The petitioners argue that these canons of construction require Congress to speak clearly when delegating major economic and political questions to agencies that alter the balance between federal and state governments.  OSHA argues that neither of these canons apply and, in any event, Congress did speak clearly, as evidenced by the fact that it recently allocated $100 million to OSHA to carry out COVID-19 related worker protection activities.

Facts outside the administrative record.   While the OSHA and CMS mandates are supposed to be judged according to the record — which makes much of the factual discussion seem a little dated in this fast-moving pandemic — we’ll be interested to see whether the Omicron variant, the recent spike in cases, and other relatively recent developments show up at oral argument.

And, maybe, a few Constitutional issues.  While constitutional issues like the Commerce Clause and Non-Delegation Doctrine might appear tomorrow, we expect the statutory arguments to dominate the discussion—exactly as they did in the parties’ Supreme Court and Sixth Circuit briefing and in most Sixth Circuit opinions.

We’ll be interested to see how the opinions of Judge Stranch, Judge Larsen, Judge Sutton, and Judge Bush influence the Justices’ approach to the legal and factual questions.

© Copyright 2022 Squire Patton Boggs (US) LLP
For more about OSHA litigation, visit the NLR Coronavirus News section.

A Hitchhiker’s Guide to What’s New in All Appropriate Inquiries

ASTM (American Society for Testing and Materials) due diligence standards have been updated to address environmental conditions not widely recognized in 2013 but EPA’s “all appropriate inquiry” regulations have yet to conform.

ASTM International (ASTM) issued its seventh version of Environmental Site Assessment (ESA) standards, E1527-21, on Nov. 1, 2021. These ASTM standards provide the leading source of guidance on minimum standards for Phase I ESAs for commercial and industrial property acquisitions. While ASTM E1527-21 improves upon the predecessor E1527-13, the US Environmental Protection Agency’s (EPA) “all appropriate inquiry” regulations (40 CFR § 312.11(b)) currently codify E1527-13 as setting the appropriate due diligence standard. As a matter of course, EPA is expected to amend its regulations to replace the reference to E1527-13 with a reference to E1527-21. However, until EPA amends its rules, buyers should recognize that the improved commercial standard for due diligence is based on E1527-21, but the regulatory safe harbor for complying with “all appropriate inquiry” standards for purposes of meeting EPA requirements remains E1527-13.

The changes in E1527-21 make it more stringent than E1527-13 and make E1527-13 insufficient for current transactions. Because rigorous ESAs provide important pre-acquisition business information, as well as statutory liability protection, we recommend, until EPA updates its Section 312 regulations, that purchasers immediately require that ESAs be performed to meet both E1527-13 and E1527-21 requirements. And following such EPA rulemaking, buyers should require ESAs meet E1527-21 requirements (presuming that is the outcome of the rulemaking).

E1527-21 identifies new requirements to be addressed in Phase I ESAs, including the following:

  • Enhanced research into the history of both the subject and adjoining properties.
  • Enhanced site recon investigation.
  • Definition changes to clarify what is or is not a recognized environmental condition (REC). For instance, a closure of an underground storage tank site may not have been remediated in the past to current regulatory standards. So there is now a requirement to look beyond, for example, a prior No Further Action letter. This is now a REC requiring further due diligence analysis.
  • Examples of RECs, such as poorly stacked drums and bulging tanks, are provided in new Appendix X.4.
  • Clarification of property use limitations and significant data gaps, which respectively may impair future site use or render an assessment’s findings of no RECs questionable.
  • Clarification on when the shelf life of a Phase I ESA commences, e.g., with an early record review component (or after a timely update) as opposed to using the final report date of the ESA.
  • Caveats about emerging issues like PFAS. See “Not So PFAS,” National Law Review (Nov. 2, 2021).
  • Clarification that the user is responsible for identifying environmental liens or land use or property use restrictions in a title search going back to 1980.

The environmental professional remains responsible for reporting to users on title search information and for finding institutional or engineering control records.

A systemic flaw in the E1527 standard is that it treats compliance issues like stepchildren, or not at all, by relying on users to add non-scope items such as wetland, air, water, and waste permit compliance. While this absence may be prudent for commercial properties and “green fields,” industrial properties require more. Compliance audits, including air, water, and waste compliance review, are needed for them. Unfortunately, the ASTM standard for those audits is only consultant process oriented (see ASTM E2107-20) and not sufficiently detailed, in our opinion.

However, the new E1527-21 standard will produce more conservative ESAs, perhaps increasing the cost of closing or raising additional cleanup concerns.

© 2022 Jones Walker LLP

Article By Robert Holden and Stanley A. Millan of Jones Walker LLP

For more articles on the ATSM, visit the NLR Environmental, Energy & Resources section.

2022 Legal Marketing Trends for Law Firm Success

Lawyers get into law to practice, not to focus on administrative tasks or marketing. However, running a law firm is much more than practicing law – it’s running a business. If law firms want to stay in business, they need to put effort into keeping abreast with legal marketing trends to attract new clients and keep the firm growing and profitable.

According to recent research, 57 percent of clients look for a lawyer on their own, and many use the internet to search for firms. In addition, 66 percent of solo lawyers do their own marketing, while 46 percent of law firms have a budget for marketing.

The global market size of the legal services industry is projected to grow over $900 billion by 2025, so it’s primed for innovation and evolution. Law firms need to stay current on legal trends and invest in marketing to be part of this massive industry growth.

Here are the top legal marketing trends for 2022:

  1. Setting SMART Goals

  2. Creating a Brand

  3. Running an SEO Campaign

  4. Embrace Content Marketing

  5. Explore Video Marketing

  6. Focus on the Right Social Media Platforms

  7. Post Reviews from Clients

  8. Showcase Case Studies

  9. Create an Email Marketing Campaign

  10. Use Automation to Track Legal Marketing Trends

  1. Setting SMART Goals

No strategy is worthwhile without goals. SMART goals are specific, measurable, achievable, relevant, and time-bound goals that ensure marketing results match their intent. Setting goals allows marketers to see what’s working and what isn’t to refine and reconsider the strategy.

For example, a goal to “generate new clients” doesn’t fit the SMART goals framework. Instead, the goal should be to increase the number of client leads generated per month from 15 to 30 as a result of the newsletter. This should be achieved in six months.

Each goal should be aligned with a purpose, or what the law firm is hoping to achieve. Here are some examples of general marketing goals:

  • Brand awareness

  • Lead generation

  • Client acquisition

  • Increased customer value

  1. Creating a Brand

Branding isn’t limited to retail corporations – law firms need a brand, too. A brand helps a law firm attract the right type of client and grow.

Creating a brand is a long process, but it starts with thinking about the mission and vision of the firm, the core values of the firm, and the unique value proposition (what separates the law firm from its competitors?).

  1. Running an SEO Campaign

Search engine optimization (SEO) is vital to any marketing plan in 2022. Competition is fiercer than ever, so law firms need to stand out and gain a ranking on the first page of the search engine results to drive traffic to the firm website.

Law firms should use tactics like content marketing, strong keyword research, optimized images, intuitive website structure, and a fast and secure web hosting platform to improve SEO.

  1. Embrace Content Marketing

Content marketing is essential for a law firm from both an SEO and a general marketing perspective. Valuable content turns a law firm into a thought leader in the industry or practice area, bringing clients back when they need a solution to a problem.

It’s important for firms to create in-depth, original content that addresses common questions for the target audience. A good place for firms to start is with a legal blog that addresses topics such as frequently asked questions from clients.

  1. Explore Video Marketing

Video marketing is sweeping the marketing world, and it has plenty of value for law firms. Consumers are more likely to listen to a message in video format than written format since people like to skim. Using a video gets the message across and serves to humanize the law firm’s brand.

Videos come in many shapes and forms, including animated explainer videos that break down complex legalese, spokesperson videos with a partner answering frequently asked questions, and client testimonials to showcase how the firm helps people. These videos can be used on the firm’s website, emails, or social media accounts like YouTube and Facebook.

  1. Focus on the Right Social Media Platforms

Plenty of law firms use social media platforms, but not all are created equal. It can be challenging to maintain accounts on every social media platform, so it’s best for law firms to select the platforms that have the most prospective clientele.

Once law firms focus on the ideal social media platforms, they can observe how clients and other law firms interact and increase engagement with followers. Over time, the presence on social media will grow.

  1. Post Reviews from Clients

Client reviews go a long way in helping law firms attract new clients and earn a higher search engine ranking. If a law firm doesn’t have a lot of reviews, it’s important to prompt clients to leave a review on social media, Google, or the website.

If getting reviews is a challenge, law firms can create incentives for staff to ask for reviews and how it can impact the firm. The firm can also offer incentives to clients. Keep in mind that video reviews or testimonials can go a long way in increasing credibility for a firm.

  1. Showcase Case Studies

Case studies are in-depth and demonstrate expertise and success for clients. Law firms should have a page with current, comprehensive case studies that highlight successful case outcomes. If it’s well organized, clients can find case studies that are similar to their case and gain more confidence in selecting a firm.

  1. Create an Email Marketing Campaign

Despite social media and other communications, email marketing is an incredible outbound marketing technique that’s still important in 2022. Nearly 60 percent of marketers say that email delivers the highest ROI, no matter the industry.

Sending out targeted, value-packed emails can help a law firm build credibility, convert new leads, and attract new and repeat customers. Once the email list is built, law firms can segment the list according to the stage of the customer journey, location, practice area, and more to create highly targeted email messaging.

  1. Use Automation to Manage Legal Marketing Trends

The legal industry is traditional, but legal practice management software is the way modern firms get ahead. Legal management software, like PracticePanther, helps law firms in a variety of lucrative business operations including streamlining billing and invoicing managing client communications and tracking time. With the burden of marketing tasks, having legal practice management software allows law firms to automate many day-to-day tasks, freeing time to focus on marketing efforts. It also offers automation for some marketing efforts, such as custom tags to track lead sources or assigning marketing tasks through workflows to ensure you’re never missing a lead.

© Copyright 2022 PracticePanther

Article By PracticePanther

For more articles on legal marketing, visit the NLR Law Office Management.

In-House Counsel’s Role in Bridging the Generation ‘We’ Gap

A new generation of tech savvy, social justice-focused and environmentally aware employee stakeholders are creating recruitment, retention and other employment challenges. Unlike their predecessors, the “Generation We” cohort of employees (which loosely encompasses Gens Y and Z and even the new “Alphas”) tend to view employment as experimental rather than a long-term commitment. Managing employees with a transactional approach to work and who demand purpose-driven employment creates significant human capital risk. Corporate counsel can play a key role in managing and mitigating that risk, not only in response to the growing ESG disclosure and regulation trends, but as part of the need to design future-proof legal frameworks for the workplace.

The Framework for Generation-Conscious Policies

Good compliance practice begins with a forward-looking framework for employment policies. The pandemic has razed traditional office life and if the prediction that 37% of office desks will remain empty in 2022 comes true, the technology supporting remote work and the policies governing it are mission critical. Generation We embraces technology as a life tool, not just a work tool.  The primacy of technology requires a second look at policies that regulate it. Examples of leading-edge policies include those addressing AI infrastructure in the workplace (as applied to, for example, applicant tracking systems) and policies addressing anti-bias in technology. Social media and communication policies also demand a generationally-aware review.  These policies, which are needed for brand protection and communication consistency, may need modernization in light of the platforms Generation We inhabit. One of legal’s (many) jobs is to construct that compliance framework. This may mean more than an annual review of human resources policies which is tough enough in this frenetic environment. But that policy review should include second look at all employment policies to ensure they are generationally adept, consistent with technology changes, and meet what the new workforce demands.

Who Participates and How

The Zoom room may have been new at the pandemic’s inception, but is mundane now. In-person teams have been displaced by fully remote or hybrid collaboration and a host of legal issues the virtual world creates. Some employment policies may not account for virtual world inclusiveness or rules of engagement. Microaggressions could be amplified in the virtual environment as employees who feel left out may lack the typical platforms to make those feeling known – resulting in the public broadcast of employment disputes or job abandonment. It is hard to pick up on social cues from an inch square web-box. It may even be harder to identify when someone feels sidelined because of gender, race or other underrepresented status. Legal should play a role in championing people on the sidelines. This means empowering managers to shut down grandstanders who grab the virtual floor. It also means taking note of those who don’t virtually raise their hands, and ensuring that all employees are heard. Rules of engagement regarding the use of video (all on? all off?) and the discouragement of side-chats and other digital unpleasantness not only express inclusiveness but role models best practices. Generation We demands inclusiveness in their work and personal lives; they are unforgiving of employers who lack sensitivity to these issues and are quick to publicize their contrary views.

Learning, not Training

Mandatory training may not speak to socially aware employees who reject stereotypical gender roles and labels and embrace racial justice. Employers cannot legally abandon statutorily-mandated training, but they can modernize it. Structured meetings with a core educational focus is meaningful because it imparts information and drives behavior. Counsel should consider helping their human resource partners to update traditional training to reflect learning about unconscious bias. Similarly, new subjects like mindfulness, wellness, mental health issues and how the workplace impacts people might also be included in learning tools.  Are the corporation’s core messages embedded in the training or is it is an off-the-shelf program lacking relevance to the business? Training is an important part of counsel’s compliance obligations but incorporating the corporation’s core mission into that programming in a customized way is an effective learning tool. Corporate counsel plays a key role in driving change in these learning systems and these changes could positively mitigate human capital and business risk.

Performance with Purpose

Corporate counsel’s role is becoming less transactional (get the deal done) and more transformational (recruiting and retaining the workforce and implementing the ceaseless legal developments that have altered how we work). Performance in this context may be more than returning value to shareholders or a fulfilling a non-profit’s philanthropic aim. Performance may instead encompass achieving a group aim.  The Great Resignation anecdotally informs us that Generation We is in search of meaning and personal growth, and not always money (though they are keenly interested in equitable compensation). Purpose-driven organizations can lead to a sense of community.  Because community is important to this generation, the identification and amplification of the corporate mission becomes even more important. A recently released Goldman Sachs Asset management report concludes that a growing percentage of youngers workers are already planning to retire earlier than their predecessors. If that movement is real, retaining the next generation of workers becomes even more important.

Generation We is driving the primacy of the employee stakeholder and underlies the addition of the “E” to ESG. This generation fearlessly exercises their workplace voice and are quick to abandon work when a business cannot articulate or veers off a cohesive a mission. Counsel can play a key role in bridging the intergenerational divide. That role and its impact begins with the compliance framework being built in a manner that adapts to the ever-growing expectations of the next generation of the workforce.

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Article By Jennifer B. Rubin of Mintz

For more articles on Generation We, visit the NLR labor section.

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