Since the COVID-19 pandemic began, Big Law has been navigating the new normal. Some firms prospered, innovating and forging new streams of revenue. Other firms needed to make difficult cuts, with austerity measures ranging from staff layoffs to summer program freezes. As we move through this unprecedented period marked by the pandemic and disruption, the country continues to move forward and adapt. IMS interviewed several leading industry and academic experts in our network to gain insights into the top trends for the commercial litigation community.
First, intellectual property litigators should be prepared for a busy year. According to survey research and consumer behavior expert Eli Seggev, the popularity of online shopping spurred by the pandemic will likely continue in the next year, where you will see small business startups selling one or a few specialized products. As a result, there will likely be an increase in the number of trademark registrations, which could cause a corresponding increase in infringement litigation.
On the software front, companies have seen their development teams be productive working from a remote environment. According to enterprise software and SaaS expert Paul Pinto, these businesses are starting to move more software-related work to low-cost locations. This is a trend that could lead to more work for IP litigators.
“This burgeoning resurgence in offshoring is already starting to lead to an equally expanding set of legal issues surrounding the infringement of copyrights, the inappropriate use of trade secrets, and data privacy issues associated with country- and state-specific data privacy laws,” says Pinto.
It should be noted that there will likely be disruptions for IP litigators. For instance, data networking expert and engineering professor Nader Mir says that certain systems, devices, or software are often required to be available for examination by experts and source code reviewers. Yet companies under ITC investigations may resist making their infringing products available in suitable locations, due to COVID-19 travel restrictions.
Other areas, including healthcare, will also likely see trends that emerged in response to the pandemic continue. Healthcare and Medicare compliance expert Julie Chawla observes that the pandemic has resulted in the enforcement of long-standing infection control standards that often were not prioritized, and she expects focused infection control surveys and state-led inspections to continue in the future. Meanwhile, securities and antitrust expert and forensic economist Dr. Don House observes that the vaccine rollout could lead to future litigation if physicians, pharmacies, and hospitals leverage their short supply of vaccines for business gain.
In general, the nature of litigation will also see changes. Securities expert and investments analyst Dan Castro says that many depositions will continue to be conducted virtually, and Big Law may see lower expenses for travel, commuting, and office space, among a number of other adjustments.
Ultimately, as software development and SaaS expert Dieter Hotz notes, there are opportunities to make the best out of this largely-virtual environment in a way that benefits everyone involved.
For litigators considering experts for a case, it is often no longer a matter of being geographically “close to a case, due to remote technologies, which have been around in the corporate world for a long time,” says Hotz. “For clients, the expert's location is no longer a major priority, and therefore, opens up a much larger selection group of experts across the nation, which did not exist before."
The litigation community has been adapting to a new normal since the spread of COVID-19, and litigators will need to monitor how emerging trends are impacting key industries, consumer and market behavior, and driving both challenge and opportunity for their practices.
This article was originally published in The National Law Journal.