As one year ends and another begins, numerous articles in the legal press attempt to predict which areas of law will be “hot” (or not) in the coming year based on market trends and the current direction of political winds.
Generally speaking, when the economy is good and capital is abundant and available at low interest rates, corporate and real estate dealmaking heats up. The converse also is true. Therefore, wise transactional lawyers make sure their practices are “recession-proof.” In other words, they also maintain skills in counter-cyclical practice areas such as bankruptcy and insolvency, workouts, and financial restructuring.
Other areas of the law are somewhat immune to market forces. Those practice areas are “evergreen.”
People- vs. business- centric practices
Evergreen practice areas often are people-centric as opposed to business-centric. That is, they encompass the legal services that individuals and families need rather than those required by businesses. The largest law firms emphasize the practice areas most in demand by big businesses, since they usually require more resources and command the highest billing rates, while smaller law firms, boutiques, and sole practitioners most often offer legal services aimed towards smaller businesses, individuals, and families. When Biglaw offers people-centric legal services, it typically is an ancillary service or loss leader to keep their high net worth executive and entrepreneurial clients “in the fold.”
Evergreen people-centric practice areas
- Personal injury/product liability/medical malpractice – even when the economy slows, people regularly get into accidents or are injured by defective products or negligent medical practitioners. Thus, both plaintiff and defense lawyers and insurance coverage and recovery lawyers remain busy.
- Criminal defense – One can argue that when economic times get tough and people get desperate, there may be even higher rates of property crimes and crimes of passion, requiring legal representation for alleged perpetrators of the full range from white collar to violent crimes.
- Family law/domestic relations – During the Great Recession, some aspects of this practice area slowed when clients were unable to pay for legal services. On the other hand, it was an interesting trend that, following the pandemic shutdown, divorce rates increased. It appeared that quarantining with one’s partner increased tensions that otherwise could be ignored. During good times and bad, families continue to need legal services related to getting married or unmarried, handling custody disputes, adopting children, and the like.
- Wealth management – The pandemic also increased people’s awareness of their mortality and the need for estate and tax planning advice and for designating powers of attorney for financial and healthcare matters. Even in less dramatic circumstances, individuals and families at virtually all levels of the economic scale regularly require these services. Furthermore, ongoing changes in client circumstances and legislation necessitate periodic updates to existing plans.
- Elder law – As the population ages, the need for this area of practice continues to grow. Elder law encompasses state and federal laws involving Medicare, Social Security, other social services and veteran’s benefit programs, guardianship, disability rights, end of life decisions, estate planning and administration, federal and state taxes, short- and long-term housing needs, financing healthcare and caretaking needs, age discrimination in employment, pension and other retirement plans, business succession, consumer protection and fraud, elder abuse and neglect, and family law matters, such as grandparent visitation, and even divorce. Few lawyers are expert in all of these; thus, elder law practitioners can specialize in just some of these areas and have a network of other professionals to whom they refer their clients, as appropriate.
Business-centric evergreen practice areas
Primarily business-centric practices which remain busy despite the economy, handled by law firms of all sizes from Biglaw to boutiques and sole practitioners, include:
- Healthcare – With the everchanging regulatory environment and continuing innovation and advancement in medical procedures and technology, healthcare is a reliably busy practice.
- IP – Both soft and hard IP practices are in constant demand as the incessant creation of new content and nonstop technological and scientific advances need global protection. IP prosecution work may decline during a recession but litigation tends to increase.
- Labor and employment – Although the practice itself changes with new laws and economic cycles and whether the current administration is union-friendly, there’s always a demand. Changes in legislation gives rise to litigation over issues such as, for example, employee classification, wage/hour/lunch breaks, pay transparency and inequality, various types of discrimination, and the like. Remote working introduces new complexities, as well. The issues may evolve, but the practice area is evergreen.
- Privacy/cybersecurity – This is a relatively new but extremely HOT practice area. Technology increasingly is involved in virtually all areas of our lives, from smart homes, smart cars, and wearable devices to a wide range of businesses and organizations collecting a seemingly endless range of data about us and our activities. Consequently, privacy protections and cybersecurity measures are critical to protect individuals and businesses from hackers and misuse of information. It appears that this area of practice will remain in strong demand for quite some time, thus qualifying it as evergreen.
Smart lawyers stay abreast of political, technological, and market trends and have at least one evergreen area of practice in their repertoire to help them weather any storms.