It’s still too early to predict exactly what the big news will be in 2012, but it’s a safe bet that the following 12 topics will be on everyone’s radar.
1. Social media
The National Labor Relations Board (NLRB) is keeping its focus on disciplinary actions surrounding electronic communications and social media.
“Acting general counsel has directed that any case that has to do with social media in the workplace be sent to the central office in Washington so there is consistency in the opinions,” said Erin Behler of Nemeth Burwell in Detroit. “It will need to be litigated to get a bright-line rule. Right now, there isn’t one.”
Recently, the NLRB has sided with workers who took to social media pages to gripe about work and their employers. But because those workers had complained about wages and working conditions, even if it was peppered with criticism and even name-calling of their supervisors, the NLRB said that they were within their rights under Section 7 of the National Labor Relations Act. The section provides that workers have the right to engage in concerted activities.
There are fine details yet to be figured out, Behler said.
“If it’s a mere gripe on Facebook and a non-work friend ‘likes’ your status, that is not protected. But as soon as a co-worker comments or ‘likes’ it, that might be protected,” she said. “I’ve been telling clients that they need to step back and not react too quickly to these things.”
It’s been catching employers off guard that the NLRB is not only stepping into these very public communications issues, but also that the board is doing it at a growing number of non-union workplaces.
“And none of these employers want to wind up being a test case as the NLRB is clarifying these issues,” Behler said.
2. HIPAA audits have begun
All entities covered under the Health Insurance Portability and Accountability Act (HIPAA) have to get ready, if they haven’t already, for audits which are now under way, following the 2009 HITECH (Health Information Technology for Economic and Clinical Health) Act. Before the end of 2012, 150 health care providers, health plans and health care clearinghouses will be audited.
The Office for Civil Rights calls the initial round of audits a “pilot program,” adding that the focus is on prevention and education rather than penalizing covered entities. The audits will be completed by December 2012.
3. IP reform
In 2011, Congress approved the most significant patent reform the country has seen in 60 years, and many of the provisions will go into effect in 2012.
The good news is that the U.S. Patent and Trademark Office’s funding will be higher, said intellectual property lawyer Eric John Sosenko, of Brinks Hofer Gilson & Lione in Ann Arbor.
And, Detroit is getting the first of the USPTO satellite offices.
Sosenko is staying focused on helping his clients with preparing for a “first-to-file” system, which will replace the current “first-to-invent” system in March 2013.
“Patent attorneys need to help their clients get their disclosures in. You need to get filed and considered before that switches over,” he said.
Further, in September, the new post-grant review provision will start.
“You need to be aware that you may be pulled into ‘litigation light,’ and it’s going to be fast,” Sosenko said.
4. Health care challenge going to SCOTUS
The Supreme Court of the United States will have its say on the constitutionality of the federal health care law’s individual mandate, and the entire law along with it.
Few cases have ever had as much potential to impact the economics of nearly every person and business in the country.
Thus far, lower courts have split as to whether the Commerce Clause grants the federal government the power to order private citizens to engage in affirmative acts under the penalty of law.
5. Affirmative action for veterans
For the first time ever, the Office of Federal Contract Compliance Programs (OFCCP), a sister agency to the Equal Employment Opportunity Commission (EEOC), is going to start requiring contractors who work for the government to establish hiring benchmarks for veterans.
“The OFCCP is going to start collecting data about data in the workforce to set benchmarks for hiring veterans,” said Jeffrey S. Kopp, of Foley & Lardner LLP in Detroit. “You’ve got 200,000 people being released from active duty annually, and a higher number of unemployed people.”
And the number of unemployed veterans is a concern, he added.
Further, the OFCCP recently reported that between 20 and 30 percent of government contractors are falling short on outreach efforts to attract veterans.
“Part of that is just a function of the economy, but unemployment among returning veterans is really high, and the EEOC wants to do something about that,” Kopp said.
6. Hot practice areas
The legal market continued to be challenging through 2011, and unemployment — particularly among new lawyers — is discouraging. But lawyers in high-demand niches fared better, and were even growing. Among those niche practices:
• Health care, where demand is rising for legal advice due to changing regulations and the growth of the health care industry as baby boomers age.
• Labor and employment is hot in part as the result of the poor economy. Clients need help in conducting reductions in force, and more than ever they need help with collective bargaining and increased unionization efforts.
• Intellectual property is going to be booming as clients need help with major IP reform legislation, much of which goes into effect this year.
• Financial service is growing as a result of the Dodd-Frank Wall Street Reform and Consumer Protection Act, and how those reforms are affecting day-to-day practices in banking and financing and lending.
• Consumer bankruptcy, for better or worse, is still busy.
7. Who will be the
next SCOTUS justice?
If President Barack Obama is able to do again what few other presidents have — appoint a third justice to the U.S. Supreme Court — chances are he will turn to a candidate who will have an even easier time winning confirmation than the president’s first two picks: D.C. Circuit Judge Merrick Garland.
His reputation as a smart jurist whose judicial philosophy is neither particularly controversial nor too liberal for Senate lawmakers makes him an easy pick when partisan divisiveness remains high.
Ed Whelan, a former Justice Department official during the Bush Administration, said that Garland “may well be the best that conservatives could reasonably hope for from a Democratic president.”
8. E-discovery’s new challenges
E-discovery continues to evolve, posing new challenges for litigators. Keep an eye on the following trends:
• Death of metadata: As judges have become more sophisticated about electronically stored information, parties are having an increasingly difficult time convincing them that every single piece of metadata is needed in discovery. So courts are resisting a soup-to-nuts request and will clip your wings if you’re being too aggressive.
• Data changes: The method of storing data continues to change. The rising use of tablets and mobile devices results in more data, which can complicate the discovery process with issues like identifying, collecting and preserving the necessary information.
Predictive coding and pricing could lower the cost of e-discovery. It uses software to sample electronically stored information in order to create specific searches that will help locate the most relevant data.
9. Arbitration bill
In the wake of AT&T Mobility v. Concepcion, the proposed Arbitration Fairness Act has the potential to change the legal landscape by banning pre-dispute binding arbitration clauses in consumer and employment contracts.
Supporters of the bill, S. 987, say that Concepcion strips consumers and workers of their power to seek redress in court because it gave teeth to companies’ ability to include binding, pre-dispute arbitration clauses in the fine print of many agreements and contracts.
Business groups, including the U.S. Chamber of Commerce’s Institute for Legal Reform, oppose the bill, saying that arbitration encourages fast, cost-effective resolution of disputes.
10. Apps you need
You’ve got a half-million apps to choose from, and more being added to the market every day. So we’ll make it easy on you, and recommend a few must-haves for lawyers:
• TrialPad: It lets you present various types of documents as exhibits for trial, as well as annotate, highlight or redact relevant portions ($89.99).
• Evidence: It’s an image presentation app, intended for cases with 200 or fewer documents ($9.99).
• GoodReader: This is an iPad app for managing a variety of files, including photos, Word documents and PDF file ($4.99).
• iAnnotate: This app will help you with that red-pen craving most lawyers have by making it easy to highlight and mark up a PDF.
• Noteshelf: This is a new note-taking app for turning your iPad into a legal pad. It has a zoom mode, a bookshelf and folders for organizing, and you can export handwritten notes as single or multiple page PDFs to Dropbox ($4.99).
• RogueTime: For iPhone and iPad, tracks time for billable hours, integrates with the iPhone address book to create a client list, and allows lawyers to enter standard billing rates for phone calls or to enter a different rate for specific clients ($6.99).
• Tap2Track Mileage: Calculates your mileage using a GPS system and allows you to copy prior trips ($3.99).
11. Legal writing in a wired world
Whether your client communications more closely resemble the latest Ashton Kutcher tweet or “Moby Dick,” we all need to learn how to best communicate in the digital age, whether it’s in email, on social media sites or in a blog. A few tips to adapt your writing style:
• Lead with your conclusions: Every paragraph should represent one thought and the opening sentence should tell the reader what the paragraph is about.
• Use plain English: Avoid legal terms except when referring to a specific principle for which there is no easy equivalent, like habeas corpus. Use active verbs and short sentences. And when it comes to syllables, less is more. Show off your vocabulary somewhere else.
• Don’t make it too simple: Plain does not equal simple. Even though the structure of writing is a little different in social media than in print, techniques of good writing are universal.
• A little quirkiness is just fine: Social media is to writing what casual Friday is to your wardrobe. The goal of social media is to allow a little of your personality shine through, and to establish online relationships that convert to face-time relationships later.
• Formatting is your friend: Look at the layout of a social media page, and learn how to use the various tools, fonts, colors, boxes around content, etc.
12. Discarded laptops
A Florida Bar opinion late last year reminds lawyers in every state of their ethical duty to sanitize their storage devices when they’re being discarded. BlackBerrys, flash drives, laptops and copiers and iPhones all store documents that need to be wiped clean when the device is being replaced.
Ethics Opinion 10-2 states that reasonable security precautions include obtaining meaningful assurances from vendors that discarded or leased machinery has been wiped clean of sensitive records.
The opinion also says that lawyers who use devices in public places should inquire and determine whether use of such devices would preserve confidentiality.
The American Bar Association’s Ethics 20/20 Commission is considering a rule change that would add a section to the Model rules, requiring lawyers to make reasonable efforts to prevent unintended disclosure of, or unauthorized access to, information relating to the representation of a client.
Writer Carol Lundberg of Michigan Lawyers Weekly and Dolan Company (parent of Lawyers Weekly) staff writers and editors Correy Stephenson, Esq., Reni Gertner, Kimberly Atkins, Esq., Tony Ogden, Pat Murphy, and Sylvia Hsieh, Esq. contributed to this story.
2. December 2011
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