Reprinted with permission.
Posted by IMS ExpertServices'
For litigation professionals, 2012 is already shaping up to be a year of “more” – more lawsuits, more regulatory
investigations, more discovery disputes and more demand for experts in a range of specializations. The one area
where “less” will predominate will be in spending, as corporate clients continue efforts to rein in legal spending.
We have no crystal ball, but based on our analysis of trends, we offer these 10 predictions for how litigation
will play out over the coming year.
1. Litigation will steadily increase throughout 2012
In 2011, litigation was down slightly, but the majority of companies expect to see more litigation in 2012, according
to the annual
Fulbright Litigation Trends Survey. For larger corporations, the most active areas of litigation continue to
be labor and employment and contracts, followed closely by intellectual property cases.
2. E-discovery disputes will snowball
Robert J. Ambrogi is a Massachusetts lawyer who represents clients at the intersection of law, media and
technology. A news media veteran, he is the only person ever to hold the top editorial positions at the two
leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is also
internationally known for his writing and blogging about the Internet and technology.
No one needs a crystal ball to see that increasingly voluminous mountains of electronic documents in litigation
will lead to increasingly voluminous numbers of discovery disputes. Clients are fed up with the costs. Litigators
are fed up with the smokescreens and delays, and judges are fed up with abuses of the process. A corollary is that,
as the number of e-discovery disputes increase, there will be greater demand for experts in search, statistics,
analytics and the like.
3. Regulatory investigations will ramp up
The vast majority of companies expect to come under greater scrutiny from government regulators in 2012, the
Fulbright survey reports. The reason they give for this is stricter regulation, not least of which is the so-called
Volcker Rule that takes effect in July 2012. Part of Dodd-Frank, the rule places new restrictions on trading by
4. Cloud computing will take off
Cloud computing is already taking off among lawyers for various applications, from law practice management to
document storage. Use of the cloud has been further propelled by virtually unanimous ethics rulings from several
states endorsing it. In 2012, the cloud will play a much greater role in litigation, especially in e-discovery,
because of its scalability, economy and ease of use.
5. Experts in social media will be more in demand
Social media is fast becoming a field of forensics expertise unto itself. Facebook, Twitter, Flickr, blogs and
all the other forms of social media are virtual warehouses of evidence. From philandering spouses to confidence-breaching
executives, everyone seems to be over-sharing online. Even security-conscious companies cannot fully protect their
communications. For courts and litigators to sort through it all, they will require greater numbers of experts in
social media and technology.
6. Judges will take increasingly hard lines
Judges are mad as hell and they’re not going to take it anymore. They have no patience for frivolous claims,
meritless motions or disregard for rules of court and evidence. Just recently, a federal appeals court
affirmed a $4.7
million award of attorney and expert witness fees against a company that filed a patent lawsuit and relied on
“junk science” evidence. This was no aberration. Sanctions are up in e-discovery disputes, courts are more aggressively
weeding out baseless claims, and judges are showing no tolerance for needlessly taking up their time.
7. IP litigation will be a hot practice area
As companies begin to recover amid a still-faltering economy, many will see their IP as their most rock-solid
assets. A key priority in 2012 will be protecting IP from infringement or theft and enforcing IP licensing and other
rights. Unfortunately, even as IP litigation becomes a key priority, courts have done little to clarify disputed
legal issues. Many believe that patent reform legislation, signed into law last September, did little but create
new issues to litigate. All of that means that 2012 is likely to bring plenty of litigation over IP.
8. Banking and finance will also be hot
With Dodd-Frank continuing to play out and the Volcker Rule set to take effect later this year, 2012 is sure
to see an increase in cases involving banking and financial institutions. Initially, many of these matters will
be regulatory investigations. Those will help breed enforcement litigation, class-action lawsuits, and other actions
against these institutions.
9. Corporations will clamp down on spending
Litigation spending is out of control and litigation budgets continue to rise. As they’ve been doing for several
years now, corporations will continue to demand greater accountability and more transparent pricing from outside
counsel. In 2012, corporate clients will take greater control than ever before over spending decisions, selecting
products and services in-house and mandating their use by outside counsel.
10. Federal rules reform will focus on e-discovery, not experts
When the Committee on Rules of Practice and Procedure of the U.S. Judicial conference convened its mini-conference
on preservation and sanctions last September, it was a harbinger of a sort. For the foreseeable future – and certainly
for 2012 – any talk of reforming the federal rules will focus on e-discovery. That means the rules governing experts
are likely to be left alone, especially given that major
revisions to FRCP Rule 26 took effect barely more than a year ago.
Those are our predictions. Now let’s hear yours. Add a comment below and tell us what you think is likely to
happen on the litigation front this year.
This article was originally published in
BullsEye, a newsletter distributed
by IMS ExpertServices™. IMS Expert Services is
the premier expert witness search firm in the legal
industry, focused exclusively on providing custom expert witness searches to attorneys. To read this and other legal
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Posted February 9, 2012