10 Predictions for Litigation in 2012
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.
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
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
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
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.
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
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
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,
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.
was originally published in
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