Interesting Times

Kelly Overstreet Johnson remembers when most lawyers, including herself, scoffed at the idea of mediation. Now, it’s what she does. Dinah Stein recalls the days when appellate lawyers got involved in cases only after trial. Now, she says, they may log more courtroom time than trial lawyers. Eddie Suarez notes the shift to electronics to present evidence in court. “In the old days, you showed up with cardboard blowups of your documents,” he recalls. David Prather misses the days when lawyers commonly resolved issues over lunch.

For the 20th anniversary issue of Florida Super Lawyers magazine, we spoke to six attorneys who have spent every one of those years on the Super Lawyers list. We asked about changes in their practice and the industry in that span of time, and also for glimpses into the future. 

“If I have one piece of advice to give young lawyers today,” says Suarez, “it’s to embrace technology—not just what’s here today, but what will be here in five years—or else you won’t be effective as an advocate for your clients.”

How has your practice area changed in the last 20 years?

Paul Steven Singerman, Berger Singerman; Miami; Creditor Debtor Rights: My field, particularly restructuring, has gone from a practice that was a stepchild in larger law firms to one that is seen as a meaningful source of revenue and profit. The substance of our cases fundamentally has not changed materially. But the clients we represent are larger, which adds interesting complexities to deals.

Kelly Overstreet Johnson, Overstreet Johnson Mediation & Arbitration; Tallahassee; Alternative Dispute Resolution: Mediation was a fairly new thing 20 years ago, and all the lawyers were grumbling about it. I was one of those skeptics. But I was totally wrong. In my 40th year of private practice, in 2022, I decided I’d had as much fun as I could stand and changed to a full-time ADR practice. Alternative dispute resolution helps tremendously in allowing more people to resolve cases in a less expensive and more timely manner. I personally like in-person interaction, but I find that in my ADR practice, some clients are more comfortable appearing via Zoom from their home or attorney’s office. And lawyers like that because it saves them time.

Eddie Suarez, The Suarez Law Firm; Tampa; Criminal Defense: White Collar: My personal practice has moved from general criminal practice in state court to primarily white-collar criminal defense, including False Claims Act defense, in federal court. The number of whistleblower cases has increased dramatically over the last 20 years as more people became aware they could get a financial benefit. But it would certainly change my practice if the higher courts uphold a recent ruling in my district that lawsuits by private citizens on behalf of the government violate the constitutional appointments clause. 

Dinah Stein, Hicks Porter & Stein; Miami; Appellate: Now appellate attorneys get in on the early stages of litigation. We sit in on trials and hearings and make legal arguments. That’s because of court rulings and statutory changes saying the key to appeal is preserving a record of trial error. Trial lawyers and clients see the value of having appellate specialists there who can make the exact arguments that can later be made to appellate courts. Now we’re probably in court more than trial lawyers. Appellate lawyers have become better lawyers for it.

David C. Prather, Smith Ball Báez & Prather; Palm Beach Gardens; Personal Injury – General: Plaintiff: A lot of laws have been passed in Florida making it harder for plaintiff trial lawyers to practice. The statute of limitations in personal injury cases has been shortened from four years to two years, even though it takes more than two years, in many cases, to determine the level and extent of  a client’s injuries and damages. The comparative negligence standard has been changed to a pure contributory negligence standard, meaning that, if the plaintiff is 51% negligent, now they get nothing. Only a handful of states have that.

Cynthia N. Sass, Sass Law Firm; Tampa; Employment & Labor: Employee: With so many people working remotely since COVID, that has created interesting issues for employment law. With noncompete contract clauses, there is an issue of the geographic scope. With antidiscrimination laws, if the person is working remotely in Florida but their work is out of New Jersey and their supervisors are in Colorado, which state law applies? With the Family and Medical Leave Act, which only applies to companies with 50 employees or more within a certain geographic radius, if the employees are all remote, the radius may not apply the way the law is written. Employers are using AI to screen job applications, and there is the question of whether those programs are discriminating against individuals based on some protected classifications such as age.

How has technology changed the industry?

Singerman: It affects everything. Functions that used to be done by young lawyers are now done by technology and AI. But technology will never replace talented, committed lawyers serving as counselors and advocates. Is the technology helpful in more efficient client service? It sure can be. Are the business and financial consequences all net positive? Not necessarily.

Sass: For a small plaintiff law firm like mine, AI evens the playing field with larger firms. It can go through a lot of documents quickly. It can produce demand letters or summary judgment motions. It cuts the time by probably one third. But you really have to know what you’re doing. You have to check the cases and citations to make sure the AI program isn’t producing hallucinations.

Suarez: Discovery in federal criminal cases has changed dramatically. The government used to give you only those paper documents they intended to use at trial, so you’d get very little. Now, we get terabytes of electronic data, the equivalent of a trailer full of banker boxes. The government says we’re giving you everything; you figure out what’s valuable. 

Stein: In 2005, you’d see runners making daily runs to the courthouse. You had to wait for regular mail to know whether you won or lost a big case or had a big project ahead of you. Around 2012, Florida first implemented online portals and email service for pleadings and motions. It’s taken a lot of busy work out of practice, and made remote practice more possible. On AI, I see it as helpful for doing work that lawyers don’t necessarily need to do. I don’t see AI replacing lawyers in writing briefs in the near future. But maybe I’ll stand corrected.

Prather: Younger lawyers for the most part can create PowerPoints and work their way around legal research a lot more efficiently than older attorneys. But with all the emailing and text messaging, attorneys have become less personable in terms of interactions. Those were the good days when I could take an opposing attorney out for a drink and we got the case settled. Many lawyers don’t go to lunch to try to resolve issues, but I still do. 

“I don’t see AI replacing lawyers in writing briefs in the near future. But maybe I’ll stand corrected.”

How has politics changed the practice of law?

Johnson: When I was president of the Florida Bar 20 years ago, one of my goals was to change the state judicial nominating system back to the system we previously had—which attempted to take the politics out of judicial selection. Having experienced, apolitical judges is one of the most important things in the practice of law. But the politicization of the judiciary, in general, has gotten worse. We want the judiciary to be as free of bias as you can get. 

Prather: Because of changes in the state judicial nominating system, all the nominating decisions are being made by politicians as opposed to lawyers in the field. There is no one weeding out politically biased individuals. So you have a more conservative-leaning bench.

Stein: The state courts have changed, starting from the top. The Florida Supreme Court is a completely different court from what it used to be, as judges retired and were replaced by the governor. The courts have become much more deferential to the Legislature. 

Suarez: When the U.S. Supreme Court ruled in 2005 that it was unconstitutional for sentencing guidelines to remove discretion from federal judges, that opened up the federal criminal justice system to becoming more equitable. Now, clients who wish to plead guilty but don’t agree with the government’s recommended sentence can go to the judge and plead for a lower sentence that may be fairer. 

Sass: Employment law changes based on who is president. During Biden’s presidency, the National Labor Relations Board expanded working people’s rights. Now that we have a new president, a lot of those policies will not be there anymore. And my practice reflects what’s going on in our culture. When the #MeToo movement started, it gave many people the courage to come forward and do something about sexual harassment at work. When the Black Lives Matter issues came up, more people started talking about race discrimination. Laws get changed and people bring claims.

How have you changed?

Singerman: Twenty years ago, I was pretty hard-charging, and I didn’t pay as much attention as would have been wise to my physical and mental health. Then about 10 years ago, I had a wonderful introduction to the practice of mindfulness. Since then, I’ve had a regular meditation practice, and I exercise every day. This has resulted in me being a better lawyer and a better person. I still work very, very hard. At the same time, I’m more focused on self-care for me and our team members.

Prather: I just turned 60 and I’ll be retiring at an earlier age than usual. My father died at 54, and I always said if I made enough money, I’m done. The practice of law is no longer fun. With all the procedural rules changes, the politicization of the legal process, and new statutes of limitations, it’s more onerous to practice. And I’m becoming sort of a dinosaur technologically. It’s now a job, which I never wanted it to be.

Sass: Practicing for quite some time gives you good perspective and helps you in advising clients. Each experience I have helps me through the next situation.

Suarez: I like to think I’m more measured and am better about not taking things personally. I’m probably a more effective negotiator now than I was 20 years ago. I’m more patient. Though my wife might disagree.

“With so much emailing and texting and zooming, younger lawyers aren’t even meeting their opposing counsel. That’s a loss in terms of their professional development.”

What is the future of law? 

Johnson: The mentoring and training of young lawyers as they come through the system is really important. We’ve lost some of that because law firms are saving money by reducing how often they’ll let their younger lawyers go to bar association meetings and spend time around more experienced lawyers. And with so much emailing and texting and zooming, younger lawyers aren’t even meeting their opposing counsel. That’s a loss in terms of their professional development.

Suarez: I see a future where someone could take a complex case and put it into an AI platform to prepare the case. At the press of a button, it will tell you what this witness will say, the issues and inconsistencies, the counter-testimony, and three potential scenarios for how you can present your case to the jury. That could give an incredible advantage to well-funded parties that can afford the power of that technology.

Stein: There will be a lot more pressure on Florida judges and attorneys, since the Florida Supreme Court on January 1 implemented major procedural changes requiring that cases be set for trial immediately. Continuances will be very disfavored. Judges will have to push their dockets forward, and attorneys will be required to confer on all motions. All of us will have to get better at being very concise in how we communicate to the courts. The judges don’t have time now to read our wonderful 30-page memos.

Johnson: AI is going to be a big factor, and I’m trying to learn about it. I’m just shocked at some of its capabilities. Hopefully it will be positive, such as reducing the time to produce briefings. But there have to be parameters. For instance, how do law schools allow students to use AI while ensuring that they are learning what they need to learn? 

Prather: I’m concerned that fewer folks will opt to come into the law profession because of the cost of going to college and law school and having to pay back student loans. That’s especially true when they can go into other work and make more money, and not have to spend as much time, money and effort as it takes to become a lawyer. Then the number of minority and women lawyers will decrease exponentially.

Sass: My field of employment law will always be a good field to be in, because most everyone works and there are always going to be issues related to your work environment. I see a lot less trials. And there may be even less in the future because employers are including arbitration provisions in employment contracts, or provisions that you can only have a nonjury trial. That would be a sad thing. People really ought to be able to go in front of a jury.

Singerman: Law firms are struggling with how to manage remote-work policies. I don’t think anyone has cracked the code on how to sustain and grow law firm culture when people aren’t seeing each other and interacting in person. Law firm leaders need to find the right balance between investing in technology and investing in the professional development of their human team members. Firms that get this balance right will handily prevail over those that do not.