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Predictions For 2021

Continuing his annual tradition, columnist Mark Herrmann makes his predictions for the coming year.

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Predictions that people made on January 1, 2020, about what they expected for the coming year were blown out of the water by March. I plead guilty: My predictions for 2020 were an abomination. (So was the entire year 2020, now that we’re thinking about it.)

On the other hand, I did okay with my COVID-19 predictions. I told you early on that hydroxychloroquine was unlikely to work as a treatment for COVID-19. Even the FDA didn’t predict that; the FDA first granted an emergency-use authorization allowing hydroxychloroquine as a treatment for COVID-19, before later revoking the authorization. Who are you going to believe about complex medical issues — those silly experts at the FDA or me?  (Alright, alright: Even a blind squirrel finds an acorn every once in a while.)

So, too with the surge in COVID-19 cases after the Christmas holidays. I warned you about it a month ago; the physicians only started talking about it late in December. (The physicians must have known that COVID-19 would surge after the Christmas holidays. Maybe the media reports only today’s news and can’t look even a month into the future. Or maybe health professionals didn’t want to scare people, whereas I’m irresponsible and didn’t care. Either way, I was talking about it before most others in the media.)

But enough of self-criticism and boasting. What does my crystal ball see for 2021?

First, on the general political/legal front: We’ll see a bunch of legislation to restore the presidential norms that Donald Trump broke.

Here’s my thinking: Many of the things that Trump did violated well-established and worthwhile norms. Just about everyone knows that.  Democrats know it and say it aloud. Republicans know it but won’t say it aloud. But everyone knows it.

With Trump out of office, Congress can pass a few laws purportedly to rein in that lunatic Joe Biden. The laws won’t be specifically aimed at Trump; Biden will be in office and will approve the reforms. Congress will want to do something to ensure that we don’t have another norm-busting president in the future.

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I’m not quite sure which reforms will be enacted in the coming year.  Presidential candidates being required to release their tax returns? More effective ways of controlling conflicts of interest in the Oval Office? Better guidelines about whether the president or presidential campaigns can be investigated and who should conduct those investigations? New rules governing executive branch vacancies?

Maybe clever people could even devise reforms to the pardon power. As a matter of constitutional law, the president has the unfettered ability to pardon people. But could we impose some requirement that pardons be granted and made public before elections, rather than after them, to cause the president to pay a political price for doing outrageous things?

Those and similar reforms are probably needed, and Congress can start thinking about them once Trump is out of office.

Here’s my second prediction, and one that’s more specifically legal: There will be a second wave of retail bankruptcies early in the new year.

January is typically a good time for retailers to declare bankruptcy: Retailers have just been paid for Christmas purchases, so they have maximum cash on hand. This year, however, we’ll see more than the usual number of bankruptcies. Holiday sales will not be enough to save some struggling retailers. And, as a general matter, many retailers are poorly structured — too many bricks-and-mortar stores, not enough online, you know the drill — and retailers can use bankruptcy to restructure debt and be more competitive after COVID-19. (I’m really thinking about private companies in the retail space. It’s harder for public companies to use bankruptcy strategically, given what happens to their public shareholders.) If you see more retail bankruptcies early in 2021, you heard it here first!

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Finally, the practice of law. I suspect the practice of law will change in at least two ways in the coming year. First, business travel will stay depressed for a good long time. I’ve always thought that Los Angeles partners “stopping in for lunch” with their Chicago clients was ridiculous. The LA partner wanted to visit Chicago to see his kids, or for a wedding anniversary trip, or to get his hair cut, and used lunch with a client as a subterfuge to get the firm to pay for the trip.

We now know that many meetings, and perhaps even depositions, can be conducted long-distance, and cost-conscious clients will insist that firms make use of that new knowledge. Some airlines and hotels may continue to suffer as businesses decide that they can travel less in a post-COVID world.

On the other hand, lawyers will want to return to the office, at least a few days each week.  It’s hard to tell your whole family to be quiet for seven hours while Mom or Dad conducts a deposition from the home office. Lawyers need space. Not only that: It’s hard to develop a collegial culture, and train new associates, when you’re speaking to people only by Zoom or telephone.

Zoom and the phone are great, but for some purposes offices are greater.  Lawyers will want to go back to their offices a few days per week, and office space will still be needed in a post-COVID world.

Last but not least — not a final prediction for 2021, but a wish: Have a happy and healthy one!

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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