As we emerge from the pandemic, what challenges and opportunities lie ahead for litigators? The Head of Glaisyers’ Legal 500-listed Litigation practice predicts a future driven by technology, Brexit and the unwinding of government coronavirus measures.
The last 12 months have seen the entire economy adapt to new ways of working, many of them stressful and unwelcome. However, some of the enforced changes to the practice of litigation were long overdue and will, I hope, continue when social distancing becomes a thing of the past.
The biggest, and most welcome, changes have taken place within the courts system, with remote and hybrid hearings and electronic bundling of documents becoming the norm. I expect the Civil Procedure Rules to be amended in due course to make these allowances permanent.
Once support staff have got to grips with creating bookmarked PDF files, electronic bundling is so much more efficient than printing out multiple copies of documents that can run into hundreds of pages each. And sending them by email is instantaneous.
Remote and hybrid hearings are also, if well-handled, a positive development. There will always be instances when it is better for litigants to attend court physically but is it really necessary for every single witness in every single case also to appear in person?
If access to the law can be improved, and the process of giving evidence made less onerous, without adversely affecting the outcomes of cases then this has to be a good thing.
These latest changes are reliant on technology but, before the pandemic struck, the adoption of new technologies was already beginning to transform the way litigators worked. In particular, firms have been looking to trial and invest in artificial intelligence in relation to document review and disclosure.
The technology is getting better every year, with the range and sophistication of the products on offer multiplying all the time. This is going to transform the way litigators work as the decade unfolds.
As the adoption of AI increases, less and less of lawyers’ time will be spent poring over documents. Instead, our work will increasingly be focused on reviewing the information that has already been sifted through and analysed by a computer, which will free more of our time up to speak to and advise clients.
Coronavirus loans and Brexit
What kind of cases will tomorrow’s technologically enabled litigators be taking on? Nobody can predict the disputes that will emerge in five or ten years’ time but, in the short to medium term, I expect the two major drivers of new work to be the unwinding of coronavirus support measures and the consequences of Brexit.
As coronavirus business support schemes come to an end, I expect there to be an increase in recoveries work by lenders, and in work defending those cases. In particular there is likely to be a lot of litigation stemming from Coronavirus Business Interruption Loans because, effectively, a lot of businesses took these out with no intention of paying them back.
There was no due diligence when these loans were made but the government, which has guaranteed them, is going to go in hard after people. There is going to be a lot of finger-pointing and it is going to get messy.
There will also, inevitably, be an increase in insolvency work. History tells us the most dangerous time for businesses isn’t on the way down but actually the early stages of the economic recovery.
We will also see commercial landlords seeking redress in relation to rent arrears when they are finally permitted access to the full range of enforcement measures again.
Not every new matter, though, will be Covid-related. The fallout from Brexit will also provide new work as time goes on.
The big issue around Brexit stems from uncertainty in relation to jurisdiction and the enforcement of foreign judgments. As a result, I expect to see a significant increase in arbitration between parties as they seek to resolve their disputes on neutral ground.
The bigger picture
Crises like the one from which we are now emerging inevitably lead to disputes, and disputes require resolution. To resolve these disputes as the decade unfolds we will need to continue to adapt to new technologies and ways of working.
However, the mark of a good litigator has always been creativity and an ability to see the bigger picture. These qualities will be just as important in the 2020s as they have ever been.
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