While representation in court cases is a major part of the business of law firms, non-litigation services are becoming a larger part of the slate of services firms offer. Over the years, non-litigation services have become an important part of representing clients' legal needs, a number of Lexington attorneys said. While law firms continue to offer traditional litigation services, the trend of settling cases outside of court—and helping protect clients before litigation ever arises—is growing.
“As a full-service firm, we certainly offer a wide variety of non-litigation services,” said W. Craig Robertson, with Wyatt, Tarrant & Combs. “We have done that for as long as the firm has been around. That being said, our litigation service team has been, and remains, our largest service team.”
While businesses and individuals continue to look to the legal profession to resolve disputes, the number of those disputes going to court is declining, he said.
“While I haven’t seen a decline in the demand for litigation attorneys over the years, I can say that fewer cases are going to trial,” Robertson said. “There has definitely been an uptick in alternative dispute resolution—particularly mediation. More litigation cases are settling short of trial than ever before. Trials are simply too unpredictable and costly.”
Non-litigation services—like advising clients on business practices or helping with real estate transactions—are the reality of attorney practices, said Keeana Sajadi Boarman, chair of corporate practice at McBrayer PLLC.
“There’s a perception, based on what is shown in movies and on TV, that attorneys live for the courtroom,” she said. “The reality is that most of our attorneys’ time is spent advising clients on the front end of issues and transactions. We structure deals, draft, review, and negotiate contracts, close real estate transactions, and advise businesses on compliance issues in areas such as healthcare, employment, and [Alcoholic Beverage Control] laws.”
It's important for transactional attorneys to work with litigators before cases ever go to trial, she said. For example, attorneys drafting contracts often work with litigators to ensure a contract can be enforced through litigation. Attorneys offering advice on business law, taxes, real estate, economic development, equine, and gaming law need to work with litigation attorneys to ensure all of a client’s needs are met, she said.
Brian Johnson with Dickinson-Wright and the firm’s South Region Litigation Practice Group Co-Chair, said non-litigation services have grown at his firm over the past few years. He attributes the trend to changes in the law in other markets. Generally speaking, he said, the volume of non-litigation services has been consistent, but the types of services have evolved as new business sectors have emerged.
“We, like most firms, have seen an uptick in data privacy and data security matters over the past few years,” he said. “We have consistently been doing a tremendous amount of intellectual property work both firm-wide and in Lexington, specifically.”
Other areas of growth for non-litigation services include cybersecurity, cryptocurrency and blockchain issues, as well as renewable energy.
Jon Gay, partner at Walther, Gay and Mack, said his firm has seen growth in some non-litigation areas, like elder care.
“Estate planning and elder care planning, in particular, has had very strong growth,” he said. “Around 11,000 people in this country turn 65 every day, so we've got a growing elder population. It definitely is a newer service we offer within the past six or seven years.”
Non-litigation services make up about a third of his practice, he said. Over the past 10 years, he said, the different silos of practice have all contributed equally to the firm’s overall income, though that can fluctuate based on the number and size of cases.
Services like bankruptcy representation can sometimes head to court, he said. But even then, most of the resolution happens outside of litigation.
“Bankruptcy is all about equity and re-shifting debtor and creditor rights,” he said. “That's where another blurring of the lines of practice is. Yes, we're going to court and we're getting the court's assistance on various issues, but mainly there will be a lot of deal-making going on in the hallways.”
Using non-litigation services properly, he said, can help prevent litigation.
“I always tell my clients that the best decisions are made in the boardroom and not the courtroom,” he said. “If there’s litigation involved, we’ve got to resolve it in the boardroom. If we resolve it in the courtroom, all of the clients take a risk of higher legal fees and more risk in the final resolution.”
For the future of law firms, McBrayer’s Boarman said what services to offer will be driven by what clients need.
“The practice of law and the needs of clients have always been multifaceted,” she said. “For over 60 years, our firm has handled whatever our clients needed us to handle, whether it was litigation, an estate plan, real estate transaction, or lobbying through our affiliate, MML&K Government Solutions. As new technologies, industries, and laws emerge, we will continue to adapt to meet the needs of our clients.”
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