As the nation continues its recovery from the impact of COVID-19 and the backlog of live trials begins to move, strong commercial litigators are becoming a must-have for many firms.
They want sophisticated strategists who are adept in trying tortious and contractual disputes whether they arise from an aircraft failure, a disputed digital asset, a challenged piece of real estate or a failed business transaction. Firms want someone their business clients can depend upon.
This increase in activity and efficiency is being amplified by some interesting new trends in commercial litigation. Clients and courts are embracing the efficiency and cost-savings providing by virtual hearings and depositions.
As partner Mark Klapow noted in Crowell & Moring LLP's Litigation Forecast 2021 report, the structural shifts forced by the past year gave technology a far more prominent role in court proceedings — increasing efficiency and effecting "fundamental changes in the art of preparing your case and presenting your arguments."
Additionally, amid broken supply chains, bankruptcies and business closings, many organizations struggled to fulfill their contractual obligations, leading to an uptick in filings.
Companies are also paying new attention to compliance measures in the current regulatory environment driven by President Joe Biden's administration, with many finding a need for seasoned corporate counsel to help them navigate government investigations.
The line between regulators and courts is becoming increasingly hazy. In an era of regulation by litigation, plaintiff lawyers, government advocacy groups and state attorneys general are stepping up to fill in when they think the federal government has not done its job. Disputes that were once addressed by enforcement agencies like the Federal Trade Commission — such as antitrust or false advertising claims — are now winding up as court battles and class actions.
Areas to Watch
According to Seyfarth Shaw LLP's 2021 Commercial Litigation Outlook report, the next year is bound to be a lively one for commercial litigation. Some of the areas we can expect to be a hotbed of activity in 2022 include the following.
Consumer Financial Services
As eviction and foreclosure moratoriums enacted during the pandemic expire, there's likely to be an uptick in litigation surrounding the interpretation and application of consumer relief.
The digital revolution is transforming both the products we use every day and the companies we do business with. This growing reliance on intelligent products and systems leaves companies more vulnerable to data breaches.
In 2022 and beyond, businesses will continue to face major cybersecurity threats from increasingly sophisticated attackers — as well as the lawsuits that inevitably follow breaches.
In 2020, the latest year for which data is available, the U.S. Department of Justice reported recovering just $2.2 billion from both settlements and judgments in False Claims Act investigations and litigation — the lowest level since 2008. With the pandemic still in play, health care companies that received government reimbursement will be under greater scrutiny and could even face whistleblower claims.
In addition, the last decade has seen a growing number of Americans with Disabilities Act lawsuits against businesses. Complaints range from lack of wheelchair access to websites that fail to accommodate those with hearing and vision challenges.
On both the federal and state level, antitrust practices have ramped up significantly. In July 2021, the Biden administration issued an executive order that includes a whopping 72 initiatives involving more than a dozen federal agencies to address competition issues across the country.
Additionally, a growing number of states are taking bold action by launching their own lawsuits. In May 2020, Connecticut and a slew of other states filed suit in the U.S. District Court for the District of Connecticut against 15 individuals and 20 pharmaceutical companies, alleging generic drug price-fixing.
Litigation surrounding pandemic-related business interruption coverage is expected to continue into 2022 and beyond. According to the Penn Law COVID Coverage Litigation Tracker, over 2,000 cases have been filed since the start of the pandemic, largely brought by the food and beverage service industry.
While most federal trial courts have dismissed these lawsuits, state courts show a mix of results. Some states have even extended the timeline for pursuing pandemic-related loss coverage. Catastrophic weather events such as Hurricane Ida, with estimated losses over $40 billion, will also fuel the need for skilled coverage litigators to pursue or defend actions brought by policy holders for property damage and business loss claims.
What Firms Look for in Commercial Litigators
Historically, commercial litigators were overlooked in favor of litigators who specialized in high-value areas such as securities, tax controversy and intellectual property. More recently, however, firms have been asking for skilled generalists to help stem the rising tide of lawsuits. The current demand is, in fact, unprecedented.
Ideal candidates have a good understanding of both the law and the litigation process. They're creative and strategic thinkers, effective negotiators, good collaborators, and excellent project managers. They must also be proficient communicators in order to advise clients on transactions and empower them to make informed decisions.
When in the market for a commercial litigator, hiring firms tend to prioritize the following.
Substantial Courtroom Experience
A mastery of courtroom tactics is important. Firms are frequently looking for first-chair litigators, but the second chair to a legal lion is equally as sought after. Knowing the venue and venire as well as the law is key.
Commercial litigators should not be afraid to constantly push for bigger roles and responsibilities in litigation in order to have a number of jury trials under their belt and demonstrate experience managing high-stakes cases to verdict and beyond if needed.
Repeatable Work From Clients
Having that big case on a resume is great, but firms also want to see a consistent pattern of work. Repeatable work means an attorney delivers favorable results for clients — but it's also derived from reasonable costs of litigation.
In this tumultuous economy, litigators are expected to achieve the best possible outcome while keeping costs down. This is where innovative billing approaches, such as performance-based success fees or portfolio fixed fees, can generate the more regular flow of work firms favor.
Effective Research Skills
At the associate level, a commercial litigator must be adept at performing efficient legal research. They need to be able to examine the legal arguments of an opposing party and use those insights to develop a sound rebuttal strategy. Included in this is discovery of facts and ultimately evidence.
Skilled litigators know how to prioritize their evidentiary theories and resources, so time is not wasted sifting through mountains of irrelevant data. All of this requires having the capacity to interpret large volumes of information and law and distill it into something readily digestible to the client, to the court and ultimately to the jury.
Solid Client Relationships
While white collar work is typically thrown off from other practices, commercial litigation stems more from the litigator's relationships. Firms want attorneys that have already earned the trust and favor of numerous clients.
Many of these relationships are built through cases lost, not won, because the client knew the attorney did their best and was right in their assessments. Two ways to build solid client relationships is to foster these connections and to truly learn the business of the client inside and out.
Setting Yourself Up for Success in Commercial Litigation
Excelling as a commercial litigator requires time, grit and a whole lot of dedication to your craft. But it can give you exposure to new and exciting aspects of the law you wouldn't experience in other practice areas.
You'll work on virtually every type of dispute that affects businesses, from business torts, class actions and breach of contract cases to shareholder complaints and trademark infringement. Being a generalist can equip you with highly transferable skills that will serve you well all throughout your legal career.
Here are a few pointers to help you thrive as a commercial lawyer:
Practice Focused Marketing
Define a narrow audience of viable target clients and actively immerse yourself in their world. Try different approaches to gaining visibility, such as proactive networking, joining industry-focused groups, penning thought leadership articles and securing speaking engagements until you find a strategy that works for you.
Expand Your Knowledge Beyond the Legal Realm
Your expertise should extend to international laws, especially those applicable to the countries in which your clients operate, and the latest legislative and regulatory developments. Skills such as financial literacy are also important for commercial litigators, since you'll be dealing with various types of business transactions involving complex financial concepts.
Seek Out a Mentor
Look for a mentor with a proven track record in the courtroom and a penchant for developing long-term relationships with clients. Working closely with a lawyer who has been in your position previously can be vital to your success.
They should be willing to provide constructive criticism about your work, courtroom presence and interpersonal skills and advise you on making key connections.
Find a Jury Consultant You Trust
These experts can help you hone your arguments early. Focus groups are excellent ways to see what theories of the case work and can demonstrate the value of the case to your client or to the opposing side.
It's clear that commercial litigation is poised to continue to be a growing subsector in the legal industry. While the field could be a great fit for attorneys looking for a new challenge, it also requires a strong track record of courtroom experience and deep-seated client relationships — attributes that take time and persistence to build up.
However, with the right core skills and consistent effort, those eyeing a switch to commercial litigation may have an opportune moment to do so in 2022.