When the Law Doesn’t Stop

 When the Law Doesn’t Stop

Wood Herron Evans has found ways to innovate during COVID-19Corinne Minard What do you do when everything about the way you work has changed but the demand for your services hasn’t? Many businesses, including Wood Herron & Evans LLP (WHE), a boutique intellectual property law firm located downtown, have experienced this in 2020 thanks to COVID-19.

“While some deadlines have been pulled at the patent office and the trademark office, some of them have not and then the court system really hasn’t stopped. So any active litigations or internal trademark and patent appeal board processes, those have kind of maintained the course here through the pandemic,” says David A. Fitzgerald, a partner at the firm.

And while WHE was considered an essential service as a legal services provider during the stay-at-home order (and thus able to work in their office), Fitzgerald says the firm still wanted to do its part to flatten the curve. About 70-80% of WHE’s staff worked from home, necessitating the implementation of a lot of new technology.

“Our two IT guys… had to work a lot of long days and nights over that week or two weeks leading up to the stay-at-home order, doing everything from running to Micro Center and Office Depot for various supplies in short stock to going to people’s houses and making sure that they had the internet infrastructure to get on our recently set up [virtual private network], whatever the case may be,” he adds.

Like many companies, WHE moved to virtual meetings and took advantage of programs like Microsoft Teams. As the firm adjusted to its new normal, so too did its clients.

“Some of [our clients’] sales have just completely stopped depending on what marketplace they’re in, so they needed us to back down on our services or delay and defer everything that we can, but then other folks in other tech sectors, they’re experiencing a boom because maybe they’re in the mask or hygiene business and so they’re really kind of needing us to do even more legwork, whether that’s worrying about complying with new government rules or regulations, or just the standard intellectual property type practice,” says Fitzgerald.

Another way WHE worked to innovate during this time was by encouraging intellectual property lawyers throughout the country to consider a different type of dispute resolution other than litigation. Kenneth B. Germain, senior counsel, has been a proponent of what’s called early neutral evaluation (ENE) for more than a decade.

“When people think of resolving legal disputes, the first thing they think of is going to court,” says Germain. “There’s nothing particularly wrong with that other than that it takes a long time and it’s expensive and it’s stressful on everybody.”

In ENE, both parties argue their case to a “neutral” party, someone who is an expert in the field that pertains to the suit, in front of their clients. The neutral party will then consider the arguments, read any documents and take into account what court and jurisdiction the case would take place in before providing an educated guess of what the end result of the case will be.

“I’m not guaranteeing any of these results but it’s like getting an early evaluation by somebody who knows the field,” he says.

Because it doesn’t take place in the court system, the process can be much quicker and much less expensive than litigating the case in court. Getting this evaluation could cause a case to be dropped, or aspects of it, thus shortening the case. And in the era of COVID-19, Germain thinks it will become even more important to companies that lawsuits take less time and less money.

“It’s so prevalent now to see courts slowed down because of COVID-19. You want a jury trial? How about next decade because of COVID-19? Budgets are cut in law firms, just all over the place. All these indicators are [that] the usual approach to resolving disputes, which is going to court and battling it out, we may not be able to afford it,” he says.

Germain hopes that early neutral evaluation becomes more of an option for the field, which would allow lawyers like Germain to use their expertise to evaluate cases before they ever go to court.

“[ENE] is embryonic. But when you read the stuff about what’s happening in the litigation landscape, you’ve got to see we need help. What we used to do is not going to solve the problems now and now means for the next couple years,” he says.

Germain thinks ENE could remain useful even after COVID-19, but that’s not the only takeaway WHE has gained over the last couple months.

“We’re trying to be very forward thinking and then let that guide the decisions on the executive committee and the management committee,” says Fitzgerald. The firm is thinking of ways to be more efficient with its space and its supplies—for example, WHE went paperless during the coronavirus, causing the firm to question its paper usage.

Other lessons learned could also become important tools in the firm’s toolbox.

“I think there’s going to be things like Ken’s early neutral evaluation that maybe he’s highlighting right now because of the pandemic and the need for people to get their disputes resolved, but that need is always there,” says Fitzgerald. “It just might highlight that that’s a better option for clients moving forward and that we can solve their needs a little better by turning to those types of alternative dispute resolution tactics.”

To Fitzgerald, implementing early neutral evaluation and adapting how the law firm runs are just part of what makes WHE what it is.

“Wood Herron is in the innovation business. We serve inventors and artists and brand experts, that’s what we do, and so it’s fitting that we kind of have to innovate our own client services,” says Fitzgerald.