Reprinted with permission.
10 Predictions for Litigation in 2012
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.
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.
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.
E-discovery disputes will snowball
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.
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 financial institutions.
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
$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
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
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.
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.
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