The disruption caused by the Covid-19 pandemic has brought about the acceleration of several significant pre-existing trends, which are changing how law firms do business. For those involved in advising on dispute resolution, in particular, the pace of change in the use of technology and funding has been intensified. It is my view that many advantages of the specialist law firm, such as the potential for speedy decision making, the lack of competing practice area interests, and the opportunity for rapid implementation of new ways of doing things, have been highlighted by specialist firms’ willingness and ability to take advantage of developments in technology, and their engagement with the increasingly sophisticated funding market.
As it became increasingly clear in March 2020 that we may all may need to avoid travel and contact with others outside our immediate household, the question arose as to how ongoing litigation and arbitration matters may be impacted. Many clients had invested significant time and money in reaching a hearing or trial stage and, whether claimant or defendant, did not wish to see matters postponed. Despite the reluctance of some advisors and their clients initially to believe it, technology has proved itself capable of facilitating remote hearings efficiently and successfully.
Widespread adoption of the best software, and the further development of practice directions, will see still better results. There are serious issues to be considered to ensure that the highest standards of fairness are achieved, in particular as regards the giving of witness evidence. Practical, meaningful protocols for the remote giving of witness evidence must be developed that do not sacrifice the time and cost savings achieved by greater use of technology.
Most of the successful London specialist disputes firms are made up of lawyers who have previously practised at very large, often international firms. Their experience confirms to them the advantage of retaining as much choice as possible when it comes to the selection of technology. Large firms with very complex IT environments, multiple layers of decision making, and detailed and lengthy testing and implementation procedures, are understandably cautious about introducing new software. Specialist firms can test multiple platforms, and put them in use on test servers with no delay. Each matter can, if necessary, have its own bespoke approach, and the most appropriate e-disclosure, e-bundling, team communication, and video conference platforms can be used.
Just as the specialist firms can pick and choose appropriate technology, they can also help their clients to select the right funder for their case. In the aftermath of the 2008 financial crash many potential claimants did not have the means immediately to pursue claims related to the events of that crisis. Since that time, the litigation funding market has become a sophisticated one, with many reputable and highly knowledgeable participants. A claimant with a Covid-19-related dispute now, unlike their equivalent in 2008, has the real prospect of being able to find funding regardless of the size of their claim or the stage it is at.
We have already seen Covid-19-related matters, and there is a significant amount of litigation likely to follow. Many disputes over breaches of banking covenants, or broker/trader disputes, may never make it to trial – but the spotlight has again been turned on the role of rating agencies, and we are all aware of litigation related to business interruption insurance, and contractual non-performance.
Whatever the claim may be, there is now a range of participants with differing risk appetites, and approaches to pricing. These developments in the funding market have led to a far wider range of clients expressing an interest in funding, including those who would typically have self-funded in the past, but now see cash preservation (and adverse cost risk mitigation) as a priority.
I believe that, just as the use of technology and funding in litigation and arbitration has been further entrenched and accelerated by the experience of the Covid-19 pandemic, the desirability of the specialist dispute resolution law firm model will also be more widely recognised. The most compelling argument for this is, in my view, to be made by looking at the advantages offered to the client. The specialist firm’s greatest desire is to be able to focus on what it does best.
The management of a specialist firm aims to remove distractions and inefficiencies which prevent the lawyers from spending as much of their time as possible providing advice on complex issues and strategies. It’s a lean operation, and everything and everyone that is a part of it, from technology to staff, must truly earn their place. Technology that relieves the team of tasks which can be done as well or better by a machine (with consequent savings for the client) finds a ready welcome at the specialist firm.
The goal for a specialist firm is not to find a means to support existing infrastructure, but rather to develop and maintain the infrastructure necessary to provide clients with all that they need, but not more than they need. Those who are part of the specialist firm are, as a result, the crown jewels, and can expect a bespoke approach to their wellbeing and development. I believe that the specialist firms who emerge from the aftermath of Covid-19 having shown themselves to be adaptable, innovative, and having a culture that is even stronger in practice than it was when written in a policy document, are very well placed indeed to play an even more significant part in the future.