In-house legal departments are facing growing challenges in 2019 from the #MeToo movement and radically evolving intellectual property landscape. But the new year also will see an increased use of technology as an aid in litigation.
At least that’s the outlook from Crowell & Moring’s annual report on litigation trends, Litigation Forecast 2019: What Corporate Counsel Need to Know for the Coming Year.
The report identifies about a dozen areas that should be front and center in the minds of general counsel, chief among them labor and employment, IP and the use of technology in litigation case strategy, said Mark Klapow, a partner in Crowell’s litigation group in Washington, who created and edited the 35-page report.
Other areas included in the report are antitrust, environment, government contracts, torts, white collar, privacy and cybersecurity, corporate, e-discovery, health care and trade.
On the IP front, the U.S. District Court for the Eastern District of Texas did not lead in the number of patent filings last year, ceding that top position for the first time in about a dozen years to the U.S. District Court for the District of Delaware—an indication of weakened IP rights, Klapow said.
Employment is a hot area, Klapow said, because #MeToo has spawned state and municipal legislation hat targets confidentiality and settlement agreements as well as “other perceived tools for repeat offenders to hide behind,” he said.
“You read about these instances where someone has been accused a half-dozen times and is just hiding behind these [nondisclosure agreements] and settling, and we’re seeing more laws that target that practice,” said Klapow, adding federal lawmakers also may seek to legislate this practice.
States and municipalities also have taken action to prohibit an employer from asking a prospective employee about his or her current compensation, making “gender pay equity another area where we can expect to see some action,” he added.
The Crowell report also looks at jurisdictional trends such as longest time from filing to termination—the U.S. District Court for the Eastern District of Arkansas with 1,420 days—and the biggest damages award in 2018—the U.S. District Court for the Southern District of New York.
“The pendulum tends to swing away from patent rights, and we’re seeing companies adjust their IP strategies and more trade secret filings than we’ve seen in the past,” Klapow said.
The report’s cover story, written by Kent Goss, a Crowell partner and member of the firm’s litigation group steering committee in Los Angeles, notes the changing nature of litigation.
“The overall trend today is for companies to take fewer cases to trial, but to take the cases that are more complex and significant to the business all the way because the client needs to take a stand or a case can set precedent for a docket,” according to the article. “This drives costs up, and technologies such as analytics and AI-based automation will be needed to manage those costs.”
In fact, legal departments that aren’t already using data analytics to help guide their litigation strategy are behind, Klapow said.
“It’s all about understanding how fast the case is going to move, the likelihood of success on a summary judgment motion, to what extent equitable relief is likely,” he said. “For complex litigation, that’s mandatory at this point. Everybody should be doing it.”
Another technological trend, Klapow added, is the use of analytics and AI in jury research, which he described as traditionally “a little bit more feel than science.”
But “the analytical tools that are available where courts allow them give you an opportunity to get more insight, in real time, into jurors and their predispositions,” he said. “It’s a tool that we all need to look at where it makes sense and where it’s allowed.”