Category: News Feeds

Honestly, Georgia is a complete mess.

Since that’s probably not specific enough, I’m talking about the public law schools in Georgia, institutions that have held out against the overwhelming weight of the legal academy and insist on continuing to issue letter grades for this shambles of a semester while everyone else is adopting at least some form of Pass/Fail grading.

While most holdout schools can lay the blame squarely on the administration, the Georgia schools answer to a higher power, the collection of political appointees making up the University System of Georgia. Early reports out of the law schools saw the schools laying the blame on the USG — a plausible boogey-entity (“Boogey-Board?”) since the state’s governor was busy pretending that coronavirus didn’t exist at the time. Curiously, one early tipster said that the University of Georgia Law powers-that-be were discouraging students from complaining to the USG, which we thought was odd but we wrote it off as an administration hoping to maintain a good relationship with people they depend on.

Now we have multiple reports that students who have continued to try to reach the USG to prevail upon them to alter the decision finally got ahold of a Vice Chancellor who informed them that “our deans had the option to petition for a p/f option all along and that no dean has elected to do so.”

Wait, what? Could this be why UGA didn’t want anyone asking the USG what was up? That’s some shady buck passing if that’s what happened.

That said, I don’t know who to believe. It’s not like UGA is alone on this — is Georgia State also playing the blame game? Or perhaps the USG is the one passing the buck, having signaled to the schools not to bother petitioning and now laying the blame on the administrations? Whatever happened, everyone is quick to point the finger somewhere else.

All that’s clear is that UGA Law is a complete mess right now and it’s all traceable to how this is being handled. The administration is reportedly refusing to have town halls to provide any sort of transparency and the SBA is going on Facebook groups telling people to “stop complaining and start studying for finals,” which is exactly the mentality you want in a zealous advocate. But it does jive with the initial article we wrote on this subject, suggesting that there’s an effort to suppress speaking out about this — within the institution, to the press, and to the USG. I’d bombard the school with media inquiries to try and get a statement, but frankly it would be kind of insulting for Above the Law to get an answer from the administration when they aren’t having meetings directly with the students. Have a town hall and we can all talk about what happened.

Seriously, the last time I saw leadership this bad out of Georgia the Patriots came back from 28-3.

Oh! And UGA has also decided to allow this semester’s grades to impact class rankings, adding insult to the injury of bull-headedly sticking with letter grades.

Maybe that’s USG’s fault too?

Earlier: Political Appointees Still Keeping Law Schools From Going Pass/Fail
When A Law School Says ‘Don’t Contact The Media,’ You Should ABSOLUTELY Contact The Media

Let’s spin the Biglaw wheel and see which firm is enacting COVID-19 austerity measures. The latest firm making the tough cuts is Foley Hoag. The firm made $208,144,000 in 2018 gross revenue, making it 142 on the Am Law 200.

Over email (available on the next page), firm leaders laid out the specific cuts to all of the stakeholders. Their plan involves a 15 percent pay cut for associates and business professionals making $190,000+, a 7.5 percent cut for staff making $150,000-190,000, and a 20-30 percent cut for non-equity partners. According to the email, equity partners have already taken compensation cuts of an undisclosed amount and will continue to do so.

Foley Hoag Co-Managing Partners, Jeffrey D. Collins and Kenneth S. Leonetti, had this statement about the cuts:

The COVID-19 pandemic is unprecedented and has caused far-reaching repercussions across the business community. As the economy slows, our goal is to ensure Foley Hoag is well-positioned to weather a downturn. Therefore, the firm is making temporary adjustments by reducing salaries for all attorneys and certain business services personnel.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Greetings, it’s David Lat here. As many of you know, and as I mentioned here last week, I recently engaged in a weeks-long battle with the novel coronavirus. I was hospitalized for 17 days, including about a week in critical condition in the ICU, when I was hooked up to a ventilator. But I’m happy to report that I made it through — thanks in no small part to the support of the Above the Law community — and I’m now recovering comfortably at home (or actually my parents’ home in suburban New Jersey, which is a bit more spacious than my Manhattan apartment).

I am (slowly) getting back into the saddle as both a legal recruiter and a legal journalist, currently working through a large backlog of communications. Apologies if I owe you a message. If I do, please feel free to try me again; I’m now more on top of my correspondence than I was while in the hospital.

During the few weeks that I have been away, Biglaw has been transformed. Law firms have implemented many different measures to deal with the economic fallout of COVID-19, including delaying or reducing partnership draws, reducing salaries of associates and staff, furloughing associates and staff, or postponing non-essential spending.

Making predictions is a dangerous business. Who would have guessed, two months ago, that we would be where we are today? But with your indulgence, I will offer a few… observations about the current state of Biglaw. (To the extent that these are predictions, please take them with a veritable shaker of salt.)

1. Law firms are responding very intelligently to the current crisis.

As I said in recent interviews with Law.com and Bloomberg, I believe that law firms are doing a good job in responding to the downturn — especially compared to how they handled the Great Recession.

I had a front seat to how Biglaw responded to the Great Recession, given Above the Law’s close coverage of events in Biglaw during that time. Back then, firms basically had one tool — layoffs — and they used it indiscriminately.

This time around, law firms are being more creative — and more fair. They are using a variety of measures to economize, and some of these measures, such as delaying or reducing partnership draws, hit partners as well as associates and staff. In other words, law firms are spreading the pain, instead of inflicting it upon the people least able to bear it.

2. We are only at the beginning of this retrenchment.

If you look at the list of law firms that have adopted cost-cutting measures, you’ll be struck by how many firms are not on the list. Compare this to the Great Recession, where it seemed that practically every firm, including some of the most prestigious and profitable, did something (e.g., layoffs, delaying start dates, etc.).

But the list of firms cutting costs in the current crisis grows every day and every week. So it’s not particularly bold of me to predict that it will continue to grow, especially as the economic downturn continues. The lockdown or stay-at-home orders in many jurisdictions will likely remain in place for quite some time, which means that the economic damage these cause will continue for some time too. As clients suffer, their law firms will suffer along with them.

3. Associate hiring has slowed down, but partner hiring will continue.

Many law firms have put associate hiring on hold — which is not surprising, considering that work is slowing down in many practice areas. And of course firms that are laying off or furloughing associates, or thinking about layoffs or furloughs, generally aren’t going to be eager consumers of lateral talent.

But as in the last recession, partner hiring continues. This makes sense: as the pie shrinks, the way firms can maintain or grow revenue is by getting a bigger share of the smaller pie. And the way to do that is to hire lateral partners with big books of business.

So here at Lateral Link, we still have many partner candidates interviewing with firms (using tools like Zoom and Skype). Closing deals can be tricky right now — firms generally want a face-to-face meeting before bringing aboard a new partner, and those can be hard to set up right now — but activity is taking place.

But who knows if this will continue? The bottom line right now: the only certain thing is uncertainty. We are experiencing an unprecedented social and economic disruption, whose consequences will not be fully understood for quite some time.

To help lawyers and legal employers navigate this challenging environment, Lateral Link is launching our COVID-19 Bridge Program. The Bridge Program will connect lawyers who are seeking work with employers who are seeking temporary assistance — and, as an inducement to encourage employers to work with us, we are offering our attorneys at no cost for two weeks (newly-placed attorneys only).

If you are an attorney interested in participating, please register with us, and we will email you with additional details. If you are an employer interested in hiring top temporary talent, please contact my colleagues Jaclyn Genchi and Carolyn Brenner. If you are an employer interested in hiring document review attorneys, please contact my colleague Craig Brown.

The Bridge Program also includes, for employers, outplacement services for their furloughed or laid-off lawyers — and the first 20 hours of counseling are free. If you are an employer interested in retaining us to provide outplacement services for your lawyers, please contact my colleague Amy Savage.

These are difficult and trying times. Please don’t hesitate to reach out to me or to any of my colleagues at Lateral Link for help. We will get through this — together.

Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. David Lat is a managing director in the New York office, where he focuses on placing top associates, partners and partner groups into preeminent law firms around the country.

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Lateral Link is one of the top-rated international legal recruiting firms. With over 14 offices world-wide, Lateral Link specializes in placing attorneys at the most prestigious law firms and companies in the world. Managed by former practicing attorneys from top law schools, Lateral Link has a tradition of hiring lawyers to execute the lateral leaps of practicing attorneys. Click ::here:: to find out more about us.

Were you having trouble getting your Note finished while you broke your personal Mario Kart record while studying for “Cloud Formations and the Law”? Well, while you did that, Pitbull decided to get a work of legal scholarship published. In a T14 journal, no less. And so Mr. Worldwide adds another jewel to his “EGOTLRA,” adding “Law Review Article” to his Grammy.

The article, “EEEEEEEYOOOOOO!: Reflections on Protecting Pitbull’s Famous Grito,” appears in the latest NYU Journal of Intellectual Property and Entertainment Law and offers the perspectives of Pitbull and his attorneys — Partner and Entertainment, Media & Technology Industry Group chair Leslie Zigel and Senior Counsel Justin McNaughton of Greenspoon Marder and entertainment attorney Ryan Kairalla — discussing the work they undertook in filing to get Pitbull’s instantly recognizable yell registered as a sound mark. To put this in context, there are about 2.6 million active trademarks right now and only 36 of those marks are wordless sounds — sounds like NBC’s chime or the MGM lion roar. That’s… not a lot.

NYUJIPEL Editor-in-Chief Nicholas Vincent said the idea for the article was first floated by Kairalla, an NYU Law alum, who approached the journal with the idea of a practitioner-based essay about the application and how its success could prove important music industry as a whole. Vincent said the journal “saw this as a cool opportunity to not only have practitioners talking about what they’ve done, but also to provide some practice advice.”

The article discusses the cultural history of the grito — an individually distinctive signature yell with deep Mexican cultural roots — and charts Pitbull’s consistent use of his personal grito throughout his career, evidence that contributed to the USPTO’s decision to grant Pitbull two marks for the yell (one for live performances and one for recordings).

You can check out the whole article on the next page and in the below video, you can watch three of the authors (the ones who aren’t internationally known musicians) speak with NYUJIPEL Staff Editor Zach Bass:

EEEEEEEYOOOOOO!: Reflections on Protecting Pitbull’s Famous Grito [New York University Journal of Intellectual Property and Entertainment Law]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Ed. note: This is the first installment in a series of posts from Dads at the Bar, an online community created as a “brother” group to our friends at MothersEsquire, for lawyer dads who want to work for a more equitable world and profession for themselves as fathers, who want to be allies for their coworkers who are mothers, and to build a better world for their daughters and sons. Welcome Dan Canon to our pages.

Two doors down from me, in a part of town where houses are packed tightly together, resides a rooster. The rooster is loud. He does not care when or if the sun is up. He does not seem to care about the municipal ordinance that runs contrary to his existence. He is a howling basilisk who terrorizes the neighborhood with his shrill cries at all hours of the day and night. I hate him.

Everyone here in Indiana is too polite to say so, but it is possible that my three daughters, like our demon neighbor chicken, have attained local-nuisance status. They often shriek at each other. The shrieking happens inside, but only when we can’t convince them to be outside. For what seems no more than three or four blessed hours a night, they sleep. Otherwise? Shrieking.

Concurrent with an increase in telephonic hearings, these noises, along with barking dogs, engine hum, clinking glasses, whining screen doors, and the occasional flushing toilet, became a part of my law practice. Sometimes the noises were mine; sometimes not. For the most part, other practitioners and judges have been too kind to mention any background clamor, if they noticed it at all.

Still, we are embarrassed when we are the custodians of racket. So we do our best to stifle it; we fumble with the mute button, we scurry off to the basement, and we yell uncharitable things at children and pets. We must take these measures because we are Very Serious Professionals. What if our colleagues were to find out that we were real people, too?

Now it seems we lawyers, along with everyone else, are migrating to a place we may never return from; a work environment in which we stay home and our electronic avatars perform all the talking that can’t be eliminated. Even the Supreme Court has burst forth from its ancient, antitechnology tomb to hold arguments via teleconference. At the same time, children have been turned out of schools en masse. All of a sudden, all of our work happens from the discomfort of our homes, and our homes may sound like a drunken food fight in Hell.

Under these circumstances, we would serve each other well by learning to accept background noise as is. To be sure, calamity in the home can pull your attention away from a conference call (especially if you’re trying your damnedest to silence it). Consider, though, that most of us are ardent multitaskers, the kind who make performance art out of getting 20 things done at once. In the morning, you drop off your dry cleaning with your coffee in your lap while checking email at red lights and flipping through discovery in your passenger seat. At night, you drive your kid to soccer with a sandwich in one hand, returning voicemails and anxiously peering at tomorrow’s calendar. But get on a Zoom chat and you can’t handle a little shrieking? A little barking? A little crowing? We litigators are used to all that noise (and not just from opposing counsel).

As much as the incessant screeching of the poultry item down the street haunts my dreams, I think I can learn to work around him. At least I shouldn’t have to be ashamed of him; he is part of what my life sounds like, whether I like it or not. And if I can accept that feathered terrorist, I certainly don’t intend to apologize for my own kids.

My ultimate proposition goes further still, and may seem radical to Very Serious Professionals: The background noise is good for us. You may recall that up until a month ago, day-to-day lawyering was inexorably social. We’d put on nice clothes, show up to court every Monday, wait for our cases to be called, and chew the fat with other practitioners in the gallery, in the hallways, on the street, or wherever. This, in my estimation, was one of the most vital aspects of the profession – one which we were losing even before we were chased indoors by invisible killers lying in wait on every tangible thing in every public place.

By gathering in the courthouse, we had the chance to size each other up. We exercised our mirror neurons. We were forced to recognize our colleagues not as unfeeling robots, hell-bent on destroying their opponents at any cost, but as the earnest, confused creatures we truly are. The courthouse is where we confronted our commonalities. The courthouse is where sympathy was earned. The courthouse is where cases were settled. And now the courthouse is gone.

Background noise is the consolation prize: the belching gulps of the coffee maker; the skitter of Labrador paws on a tile floor; the too-loud laughter of children. Such little blessings allow us to see beyond the avatars we litigate against, to peer into the house of a real person, and to feel the warmth of an inherently communal profession, if only for a few seconds at a time. Crises have a way of making us forget who we are. In embracing the background noise, we can remember.

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Dan Canon is a civil rights lawyer and a Professor of Law at the University of Louisville, Louis D. Brandeis School of Law. Most notably, he served as lead counsel for the Kentucky plaintiffs in the case of Obergefell v. Hodges, which established marriage equality in all 50 states. He writes on civil and criminal justice issues for a variety of regional and national publications. PLEADING OUT, his book on plea bargaining reform, is scheduled to be published in early 2021. His short documentary series on activists in the Midwest can be viewed at www.midwesticism.org. He lives a noisy-but-great life in Indiana with his wife and three daughters.

We’ve written… a lot about COVID-19-inspired austerity measures. As Biglaw struggles with cash flow, collectables, and cost-cutting there are actually firms going the opposite direction. Culhane Meadows is already the largest woman-owned, national law firm in the country, and rather than sit on that achievement, they’re actually looking to add to their roster of diverse voices at the firm.

In the latest episode of The Jabot podcast, I talk with Kelly Rittenberry Culhane and James Meadows about running a law firm during a global pandemic. We also chat about the importance of diversity, what other firms can do to make sure they are as diverse as possible, leaving Biglaw to start a firm, and what’s like to be responsible for keeping the lights on at their own firm.

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wears when delivering dissents from the bench. It’s a reminder that even when we aren’t winning, we’re still a powerful force to be reckoned with.

Happy listening!

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

The hits keep coming for the biggest of Biglaw firms thanks to the COVID-19 outbreak that’s crippled the U.S. economy. From salary cuts to furloughs to layoffs, there’s no end in sight for what firms are doing to protect their bottom lines and their fates in the legal market.

Today, we have news from Seyfarth, a firm that posted $669,360,000 gross revenue in 2018, earning it the 59th place on the latest Am Law 200 ranking. Seyfarth is taking some cost-cutting measures that seem quite austere. A memo from the firm is available on the next page.

In addition to salary cuts effective May 1 — equity partners will reduce their monthly draws by 20 percent (which started on April 1) while all U.S. lawyers will have their pay reduced by 10 percent and staff will see their pay reduced in levels, with those who earn $60,000 or less unaffected (0 percent on the first $60,000 of earnings; 5 percent on $60,000-$150,000 of earnings; 10 percent on earnings over $150,000) — the firm will be furloughing 10 percent of its U.S. employees for a 90-day period. The firm says those furloughed will be staff and a smaller percentage of attorneys; sources say the firm has furloughed 180 staff and 50 attorneys. Seyfarth will pay the full cost of all furloughed employees’ health coverage during the time they’re away from the firm.

The firm has also canceled its “summer fellow” program, but says it will provide stipends and extend offers to all law students who expected to work at the firm to join Seyfarth as “senior fellows” in fall of 2021, with their official start date as associates pushed back to January 2021.

Here’s a statement from Pete Miller, Chair and Managing Partner of Seyfarth Shaw:

Like most other firms, Seyfarth has elected to take prudent steps to protect our firm’s long-term success. While difficult, we believe these actions will see us through this unprecedented event and safeguard our firm’s future. We already have taken numerous steps to reduce costs that did not impact jobs. And while our financial foundation remains strong, we are implementing these new measures now out of caution. The last two years were among our best ever, and our Q1 financial results were also strong. But after pragmatically assessing the pandemic’s impact on our clients and the broader world economy — and the challenges they foretell for the rest of the year — we had to make several additional tough decisions this week.

While the measures will primarily apply to our US employees, we intend to follow a consistent approach across our international operations. Our hope and goal is to return to normal operations as soon as possible, and our first priority is to bring our people back to work. Our firm has already been tested by the pandemic in extraordinary ways, and I am inspired every day by the many ways that our team members are supporting our clients and each other in this challenging time. That includes doing everything we can to keep the firm headed in the right direction and to protect its future.

On the bright side, Seyfarth has established an Employee Assistance Fund to support all employees, and their families, who have been impacted by COVID-19.

Best of luck to those who have been furloughed by Seyfarth during a pandemic.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

I wrote in my most recent column that the COVID-19 crisis was forcing long-gestating changes to our industry to come into being. I focused mostly on the damage these changes would wreak on firms that have failed to prepare for the future. But it won’t be all gloom and doom once this crisis lifts. Many firms have been working hard at future-proofing their operations over the past few years and stand to be validated as the legal industry moves into a post-COVID world.

I spoke a few weeks back to the leader of a firm that’s been ahead of the curve, James Knight, CEO of Keystone Law. With 350 attorneys in the UK, and a presence in Australia, Northern Ireland, and the Isle of Man, Keystone is part of the growing ranks of the mid- and large-scale cloud-based or “distributed” firms. But it’s not just Keystone’s virtual platform that makes it unique. The firm also happens to be one of the world’s only publicly traded law firms.

Day And Knight

Keystone maintains far less of a real estate and staffing footprint than a traditional law firm, with only four formal offices and 40 support staff. It makes up the difference with a focus on infrastructure and technology. Given that real estate and personnel are typically the biggest expense items on any firm’s income statement, virtual outfits like Keystone are generally set up to weather the coming downturn in the economy better than firms with higher built-in expenses.

Although Keystone may have most of its attorneys and team members working from home, Knight told me that the firm makes deliberate efforts to maintain connections among its people. “We do a lot of events. We do a lot of parties, a lot of lunches, a lot of training sessions, that sort of thing, so people know each other very well.” Knight also said many lawyers plan vacations and activities together to solidify bonds. Keeping distributed networks of people engaged with one another can be like threading a needle, but it’s crucial to developing and maintaining a firm’s sense of culture. In today’s world, where remote working is the norm, firms that have been working for years on how to keep home workers connected have a leg up on most brick-and-mortar firms now trying to figure it out for the first time.

On The Exchange

Keystone’s structure made it uniquely suited to go public under the UK’s loosened laws regarding law firms sharing fees with nonattorneys. There was substantial fear and uncertainty in the UK in advance of those changes, similar to the fear and uncertainty bubbling through the American legal community as our bar associations and courts consider similar changes. Knight reports that the fears have, for the most part, not come to fruition.

Only six law firms, Keystone included, have gone public in the UK since the ownership rules changed nearly a decade ago. Per Knight, that’s because the traditional economics of a law firm align against outside ownership. “If equity is sold off to investors then there’s less money to be shared amongst the partners. It does suit organizations like Keystone because it’s very, very different.” Since Keystone’s partners make most of their money directly off their billings, rather than out of their share of the firm’s overall fortunes, they’re not losing out if the firm sells off some equity to build out infrastructure or reward its stakeholders. They make functionally the same amount.

By being on the vanguard of law firm capital structures, firms like Keystone are able to fund growth in ways not possible in most law firms where partners cling tightly to capital and generally want to maximize short-term returns. But the model also opens up new ways of surviving in the coming downturn. Traditional firms that find themselves in a cash crunch typically either have to make painful cuts or, in some cases, take out long-term loans. Keystone has all those options, plus the ability to sell off equity. Firms like Keystone, therefore, have more arrows in their quiver when major challenges arrive. These benefits, Knight says, are a fair trade-off for the increased administrative burden of reporting requirements.

Different Structures, Different Opportunities

But don’t let that virtual footprint fool you. Knight made it clear that Keystone doesn’t try to compete on cost, something Knight called “a very dangerous game to play.” Firms that gorge themselves on low-cost, low-margin work, like the now-shuttered Sedgwick, find themselves susceptible to shocks if that work ever dries up. Instead, Keystone competes for rainmakers, with the understanding the clients will follow where their attorneys move. Because of Keystone’s lower overhead, its attorneys keep a bigger-than-average percentage of the revenue they generate, which entices the work-generators to lateral over. Rainmakers at traditional firms who are confident in their books and not interested in contributing to a larger pot that might be drained by attorneys whose books have gone away are a key target for firms like Keystone in the coming years.

Looking Outside Of Ourselves

Forced evolution isn’t just happening in the legal world. As the nation’s schools close down for the academic year, learning has moved online at an unprecedented pace. I recently had the opportunity to take a live course via Zoom from MIT professor Hal Gregersen. Called The Innovator’s DNA, the course is based on Gregersen’s book of the same name, which I’ve written about before in this space. It was one of the first live courses MIT offered remotely, and would have been unthinkable at most universities just a few years ago. Yet, going forward, I have to imagine it will be a standard option.

One of Gregersen’s key points is that innovators spend time observing the world around them, seeking out fresh data and figuring out new ways to incorporate their findings into their own lives. As we spend the coming weeks, months, or years sitting in our homes, waiting out the worst of the virus, we have more opportunity and reason than ever to see the new and exciting things being done both in our industry and in the larger world. We would be remiss not to take advantage of this time.

Those who don’t look outside of themselves in the coming months will likely remain unprepared for whatever else the world throws at us next. Those who do may find their next great opportunity to thrive.

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James Goodnow is an attorney, commentator, and Above the Law columnist. He is a graduate of Harvard Law School and is the managing partner of NLJ 250 firm Fennemore Craig. He is the co-author of Motivating Millennials, which hit number one on Amazon in the business management new release category. As a practitioner, he and his colleagues created a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.

Will there be any live sporting events in the United States before the contemplated start of the preseason for the National Football League? That would mean games being played prior to August. The continued spread of coronavirus and increase in deaths has made it difficult for anyone to predict when there will be a return of sports, and one man may be looked at for guidance for a return to some normalcy.

Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, is of the opinion that the only way professional sports will be played in the summer or fall of 2020 is without fans in attendance and by keeping players in hotels. It is simply Fauci’s recommendation, as he has no authority outside of his research center, but he does have 50 years of public health experience, he has been tapped by President Donald Trump to assist with the coronavirus crisis, and he has advised every president since Ronald Reagan.

Basically, much of America has put its trust in Fauci.

“Have [the players] tested every single week and make sure they don’t wind up infecting each other or their family, and just let them play the season out,” said Fauci during an interview on the subject of allowing games to be played again.

During his April 16 press conference, Trump also indicated his belief that many sports leagues will start up again without fans and that there will be “made for television” sporting events. That press conference included the unveiling of a three-phase plan for states to reopen, which provides conditions under which sporting venues could reopen in the first phase, after a jurisdiction is able to demonstrate a downward trajectory of documented coronavirus cases within a fourteen-day period or a downward trajectory of positive tests as a percent of total tests within a 14-day period (flat or increasing volume of tests).

Trump said that some jurisdictions will meet the criteria for the first phase as early as today. Fauci doubled down on his prior commentary and reiterated that sports will only return in summer 2020 if nobody comes to the stadium. He indicated that it is conceivable that an audience be in the stands once a jurisdiction gets to the third phase, but it will likely be a while before that happens across cities that host sports franchises.

There is an urgency to open up the economy to live sporting events, even if it means that games will not be played in front of fans for quite some time. This issue is playing itself out front and center in Florida.

Florida Governor Ron DeSantis and the State of Florida Division of Emergency Management have labeled professional sports as “essential services.” An April 9 memorandum says that those providing such essential services include “Employees at a professional sports and media production with a national audience — including any athletes, entertainers, production team, executive team, media team and any others necessary to facilitate including services supporting such production — only if the location is closed to the general public.”

By classifying sporting events as “essential,” DeSantis has opened the door to sports returning as soon as now with the caveat that no fans be allowed to attend. DeSantis seeks to bring the WWE, NASCAR, and professional golf events to Florida sooner rather than later in an effort to bolster the state’s economy, but appears to have recognized Fauci’s position that fans must come back much later in the reopening process.

“I understand you’re not going to fill up Daytona Speedway right now,” DeSantis said. “I’m not suggesting you do, but I think if there’s content that can be created, I think that that’s a good thing. Even Dr. Fauci said, televised sports is a positive thing.”

DeSantis’ closing line makes it even more abundantly clear how much Fauci’s words mean for the future of sport in the United States.

Various sports properties have much more aggressively announced their intentions to return, without fans for the time being, in close proximity to Dr. Fauci’s recommendations. The PGA TOUR has put a placeholder of June 11 as the date that it will return, without fans, with its Charles Schwab Invitational scheduled to take place in Fort Worth, Texas. Major League Soccer has recently targeted the second week of June for its return. The NFL is reportedly considering holding games in empty or partially filled stadiums and expects that it will begin to feel pressure from the federal government to do what it can to provide Americans with live sporting events.

If everyone is relying on Fauci for guidance on when live sports should resume, then will sports leagues and teams be inviting enhanced exposure should they allow fans to return to their seats in advance of Fauci officially changing course on his views and before a jurisdiction can prove that it has satisfied the conditions of the third phase of the newly introduced reopening plan? In a litigious society, it is not far-fetched to imagine a potential plaintiff using Fauci’s recommendation that games be played without fans in attendance if spectators are rushed back to stadiums and some contract coronavirus.

Certainly teams and leagues would be able to use defenses such as that the fans assumed the clear risk of attending the sporting events, and it is likely that, no matter when fans are allowed to return, special coronavirus-related waivers of liability will either be added to the tickets or be required to be signed by fans before they are allowed to view the matches. Furthermore, it will be very difficult for a plaintiff to prove that the virus was contracted at the game as opposed to in another venue.

As my colleague Jeff Fannell, president of Jeff Fannell & Associates, pointed out, “the spectator attends the game on his or her own accord and will claim the league was negligent? By deciding to attend, the spectator assumed the risk … a risk the spectator was aware of by virtue of the very statement made by [Dr.] Fauci the spectator would rely upon in making the claim!”

Yet, defending against this type of lawsuit is not something that sports teams and leagues even want to have as a concern. Furthermore, there is significant revenue to be earned even when forfeiting monies that would otherwise be received from ticket sales, concession items, and parking. Thus, it is more likely than not that every word uttered by Fauci on the subject will have great influence on how and when live sports will be returning. For now, it looks like it will be a couple of months before organized sporting events make a return, without any fans cheering on the athletes.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

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