Despite extended court closures this year, commercial litigators are growing more optimistic.
Several leaders of litigation departments at large law firms said business now is better than expected—or even better than last year. Buoyed by a mix of remote-working innovation and new matters related to COVID-19, the practice group most oriented toward courtrooms has generally been fine without frequently attending them, they said. Some predict even more work next year.
Randy Brown, head of litigation at Barnes & Thornburg, said the firm’s litigation department had actually billed more hours in 2020 compared with last year, based on evaluating the months of March through August 2020.
The firm has seen a significant uptick in mass tort defense cases for medical devices and pharmaceuticals, Brown said. Work in insurance recovery and white-collar investigations practices is up, too, he said, and he believes disputes over representations and warranties as well as COVID-related consumer claims and class actions could increase in 2021.
“I don’t want to say litigation is recession-proof, but people are still suing each other regularly,” Brown said. Although local court restrictions varied between areas where the firm is active, such as New York and Indiana, he said, litigation work can be triaged in a way that accounts for court closures and delays.
“If a hearing is continued, there are still lots of other things ongoing, in terms of the document collection review process, your depositions,” Brown said. “Pretty quickly folks realized they’re going to need to move forward. So, even in those venues where it might be more restricted, people were still filing motions and still conducting discovery.”
Michael Huget, chair of the litigation department at Honigman, said activity slowed down “considerably” at his firm in March and April, which may have been tied to clients trying to maintain cash or kick things down the road while uncertainty reigned.
“You can only do that for so long in litigation,” Huget said. “We saw a lot of extensions, stays of discovery, that sort of thing. And when that sort of lifted, the slack in the line tightened, then bounced back, then hit with a whole bunch of new stuff that was COVID-related. So we’ve been maybe busier than we’ve ever been.”
For instance, Honigman is one of the firms representing Taubman Centers against Simon Property Group over Simon’s attempt to exit their $3.6 billion merger. Simon has claimed Taubman’s business is too compromised by the pandemic to go forward with the acquisition.
“That’s a classic example of a case that’s here that wouldn’t have been here if not for COVID. We’ve had several deals like that,” Huget said.
While there was an initial concern earlier this year about client collections, ultimately they haven’t been a bigger problem compared with other years, he said, because clients’ businesses picked up.
In general, restructuring, securities and major bank litigation arising from disputes between borrowers and creditors have been on the upswing, said Richard Spehr, head of Mayer Brown’s global litigation and dispute resolution practice.
“There has also been a huge increase in cyber and privacy-related investigations. Notably, as global investigations continue to grow in size and complexity, our expanding global regulatory, investigations and enforcement team remains busy—even in an environment in which travel remains a challenge,” Spehr said in a statement.
The optimism in Am Law 200 litigation departments is a sharp change from earlier this year, when courts across the country closed in the spring.
“When you started seeing court deadlines being extended, filing deadlines being extended, any kind of hearing, oral argument, that sort of thing, being canceled, there was an initial sense I think that litigation was going to be affected in a very concrete and immediate way,” said Mike Scodro, a partner in Mayer Brown’s appellate practice and a former Illinois solicitor general.
Although there’s still downward pressure in some litigation areas, transferring several court procedures to remote and virtual court appearances has also kept law firm litigation business moving along.
“This is one [change] I think a lot of lawyers think will stick,” said Lisa Smith, principal at Washington, D.C.-based legal consulting firm Fairfax Associates. “I don’t think we’re going to see jury trials done via Zoom in the next normal. But certainly, for some of the more procedural aspects, it likely makes sense for both the courts and the clients.”