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Think international arbitration is ‘soft’ litigation? Think again

illustration of bridge between heads

Before becoming a lawyer I assumed that arbitration was a lesser man’s litigation, an academic exercise kept behind the curtains. I was wrong. After a decade practising international arbitration, I’ve learned that no two arbitrations are the same; each requires its own thorough and creative approach to the intellectual aspects of the case, balanced with a cultural perspective that accounts for differences in legal backgrounds, business norms, and language barriers. If you’re looking to blend trial advocacy skills with the ability to navigate cross-border sensitivities, the practice of international arbitration can be highly rewarding. Continue reading “Think international arbitration is ‘soft’ litigation? Think again”

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Moving towards compliance in ambiguous times

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As we stand on the eve of drastic change to the data privacy legal landscape in the United States, many companies are preparing to analyse their business practices and wondering where to start.
There is considerable ambiguity regarding what compliant data privacy practices look like in 2020 due, at least in part, to one moving target – the California Consumer Privacy Act (CCPA). Taking effect on January 1, 2020, the CCPA is the first comprehensive privacy law in the US and will revolutionise a legal landscape that has been famously sector-specific by imposing European-style privacy mandates on entities across the country.

Revelations of extensive and previously undisclosed data sharing by Facebook, which came to light in the 2018 Cambridge Analytica incident, were the likely impetus for California businessman Alastair Mactaggart’s success in launching the ballot initiative that resulted in the rushed enactment of the CCPA – with the backing of large Silicon Valley technology companies such as Facebook and Google – in the summer of 2018.

The CCPA applies to any sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity that is organised or operated for the profit or financial benefit of its shareholders or other owners, that collects consumers’ personal information, or on whose behalf such information is collected, and that alone, or jointly with others, determines the purposes and means of the processing of consumers’ personal information, that does business in the State of California, and that satisfies one or more of the following thresholds:

  • has annual gross revenues in excess of $25m;
  • alone or in combination, annually buys, receives, sells, or shares for commercial purposes, the personal information of 50,000 or more consumers, households, or devices; and/or
  • derives 50% or more of its annual revenues from selling consumers’ personal information.

The law requires high levels of transparency to consumers regarding how their personal information is used and shared, and gives individual consumers rights to access, delete, correct, and prevent the sale of their personal information, among other things.

Personal information is very broadly defined to include any information capable of being associated with a person. The California Attorney General may enforce the CCPA beginning July 1, 2020 (or six months after issuing regulations, if sooner) and may seek $2,500 to $7,500 per person per violation. There is also a private right of action in the event of unauthorised access and exfiltration, theft, or disclosure as a result of the business’s violation of the duty to implement and maintain reasonable security procedures and practices appropriate to the nature of the information, and a private plaintiff may recover $100 to $750 per person per violation without any showing of harm.

The law calls for the California Attorney General to promulgate binding rules in furtherance of some of its provisions. Technical amendments took effect in September 2018, and dozens of additional proposed amendments are the subject of debate in Sacramento.

Federal law?

Other states appear primed to pass similar, but slightly different laws. Early 2019 saw the emergence of similar bills in Washington, New York and New Mexico, among others.
There is also a much higher likelihood that an omnibus federal privacy law will pass sometime in the next few years. For the first time in US history, executives at the largest technology companies, including Apple, Google, and Facebook, are calling for a federal privacy law. More than half a dozen bills have also been proposed by legislators on both sides of the aisle at the federal level, raising the question of pre-emption.

It is clearly time for private entities in the US to prepare for change, but change can be expensive, especially when it involves legal fees and business practice pivots. How does a company begin? The answer lies in data governance as the first step in an ongoing process.

The European Union’s General Data Protection Regulation (GDPR) is built around the themes of transparency and choice regarding an entity’s data use. CCPA, following in the footsteps of GDPR, is fundamentally built around the same themes. As such, a data governance programme focused on transparency and choice will set a company on the road towards compliance.

Knowing your data

The first step in creating such a data governance programme is sometimes referred to as ‘knowing your data’, and is carried out by a process called data mapping or data inventory. A company cannot possibly be transparent in its data practices if it fails to know where all of its data is and what is being done with it. Data mapping is the process whereby a company audits itself and determines: what kind of data it collects, from whom and for what purposes; where the data is stored; how long the data is kept; and if the data is transferred (where and why).

A company should also take steps to segregate its data as appropriate and address access controls as part of a larger and holistic information security programme. This allows the company to address applicable privacy law requirements with respect to the source, type, and use of data (including assigning retention limits, meeting collection purpose limitation requirements, and facilitating consumer access rights). This also permits the company to classify/assign levels of sensitivity so data is stored with security proportional to such sensitivity.

Another step in a data governance programme is contract review and vendor management. If a company makes data available to third parties, including vendors, existing laws require that a contract be in place outlining the parameters of the transfer, the purpose of the transfer, the limitations on use, and the responsibilities of each party including if in the event of mishandling or breach. If a contract is already in place, it will need to be updated to meet the new CCPA requirements of transparency and choice with a ‘data protection addendum’ or similar amendment.

‘Privacy By Design’

Building privacy into business processes and practices, is another critical piece of a mature data governance programme. Exemplary of one potential approach to ‘Privacy By Design’ are procedures that require ‘pseudonymisation’ of personal information.

The CCPA introduces for the first time in US privacy law a concept of pseudonymisation, defining it as ‘processing of personal information in a manner that renders the personal information no longer attributable to a specific consumer without the use of additional information, provided that the additional information is kept separately and is subject to technical and organisational measures to ensure that the personal information is not attributed to an identified or identifiable consumer’. Although pseudonymised information is still personal information, both the CCPA and the GDPR reward risk mitigation in the form of such measures.

The future of privacy regulation in the US remains opaque, but the time is long gone to begin compliance efforts. Organisations should launch and advance data governance programmes that promote legal compliance, best practice and responsible data stewardship.

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From Uber to Lawber

As the legal ecosystem grows more complex with alternative providers, law companies, sophisticated tech, and growing legal departments within client organisations, now is a good time to consider potential scenarios of how the industry might look in years to come.

I recently spoke about one of these scenarios at an industry conference, drawing parallels from the digital transformation that has remade the taxi industry. Smart firms should be preparing for a similar transformation in the legal industry now.

Uber changed everything

In just a few years, Uber transformed the taxi industry. It did so without changing the core service – you’re not zapped through space or transported by drones – and you still need to get in a car and navigate through traffic from points A to B.

But Uber has transformed the buying experience – it brought clarity and transparency. You don’t need to wait for a driver on the street. You don’t need to negotiate the price. Talking to the driver is optional. So is having the right currency. You don’t need to know how to get where you’re going, or even where you are. Expense reports and cost tracking become simple.

Uber has created an efficient market for buying transportation services with significant ramifications: on the buy side, it reduced associated anxiety and increased demand, while on the sell side, it reduced entry barriers. The holders of traditional taxi medallions are scrambling to catch up with this more-evolved competition. They did not prepare, and now they’re struggling to compete.

How this relates to the legal industry

Running legal matters is much more complex than driving a taxi, of course. Yet, the analogy between the industries – from the client’s perspective – is straightforward. Similar to the annoyances of pre-Uber taxi services, legal clients are frustrated by costs and lack of transparency and efficiency. Just as when you’re riding in a cab with a running meter and wondering if the driver is taking the optimal route, your clients often wonder if all those billable hours are required.

One of my roles as chief knowledge officer is to ‘future-proof’ the firm – we look at various scenarios and prepare the firm and our lawyers for the way we’ll practice in the years to come. That’s why I like ‘Lawber,’ the Uber analogy, because whether or not it draws the precise picture of how the future will look, it puts a spotlight on what we need to do in order to give clients the service they’re hungry for.

The Lawber vision

Lawber will be a digital market for buying legal services. By mapping with real, actionable data, including efficiency, quality, availability, cost, satisfaction, etc. Lawber would identify the right lawyer to help with your legal problem.

Adopting Lawber would change the way our clients buy our services, taking their queries for legal services, and, through a combination of qualitative and quantitative metrics, identifying the individual lawyers (not necessarily firms) best suited to help. Forget about RFPs and referrals. Lawber would facilitate (and eventually dictate) who gets to do the work, which is likely to be the most efficient qualified lawyer.

Today, clients come to Big Law because we are synonymous with quality. But when our lawyers and matters are ranked for efficiency, the firm’s reputation will become a smaller part of the buyer calculation. Clients don’t choose who shows up when they order an Uber – when they need a driver, someone reliable is there at the curb.

Relationships and ‘preferred providers’ will still exist in the Lawber model, but these won’t be decisive factors. If another lawyer is 30% cheaper or 30% better than you are, they will likely get the work, even if they’re working alone out of a basement at a remote location.

That does not mean that the churning ecosystem supporting the world’s top partners will disappear – in fact, support teams will become more important than ever to lawyers who are working smarter, embracing the latest innovations, and using them to their advantage. To compete in that environment, law firms must be efficient to the core.

And that efficiency would be a key piece of the Lawber ecosystem. Right now, some lawyers find it hard to estimate and commit to fixed fees, because anything can happen during the course of a matter. But Lawber would have the market data to do predictive analytics and account for the unknown.

Not only that, it would be transparent, trustworthy and pretty accurate as it predicts what a particular type of work should cost, and it would have the means to self-correct as the matter progresses – just as the Uber navigation system does when traffic conditions change.

Just a hypothesis?

Lawber isn’t here yet, even in these days of big data and legal AI, because it is really hard to pull off. Legal practice is complex, with many moving parts. Those that try, in a data-driven way, to compare lawyers tend to only see the bills, not the data points more relevant to comparing the services provided. But technology and client demand will eventually put an end to this status quo.

At some point in the not-too-distant future, a Lawber broker, whether an entrepreneur or an offshoot of an established consulting firm, will come into being. This broker will convince Big Law’s biggest clients to start demanding that all matters be serviced through Lawber, that all lawyer touch points be documented within Lawber, and that every piece of digital data become intertwined with this intermediary ecosystem, not guarded within the walls of the law firm.

While lawyers often see each matter as bespoke, special, and difficult to quantify, when you have insight into all relevant data, it is easy to articulate meaningful data points, analyse work product, use machine learning to draw conclusions, and move into predictive analytics. In other words, quantifying our work will get easier.

How to future-proof your firm

At White & Case, we have been preparing for Lawber – or whatever comes next – through solid knowledge-management practices, legal project management, and a dedicated practice innovation team. Every day, our business services professionals work to make our lawyers and practices more efficient and indispensable to clients.

This includes hiring ex-lawyers, data-scientists, researchers, and legal technologists for the core teams that support our practices, so that we find and adopt the right solutions to enhance the way we deliver legal services. It includes rigorously documenting what we do, from a strong document-management system for client materials to best-practice checklists and knowledge databases curated by dedicated professional support lawyers.

This includes looking at our time entry and budgeting practices, and evaluating where an AI solution can help us get smarter in these areas. It includes investing in a firm-wide business-intelligence solution that will connect all our systems and help us determine which data points are helpful for our lawyers, business services folks and even clients.

Last, it includes getting our lawyers on board with change, and having constructive client conversations around practice innovation.

None of this is easy, short-term work, but it is critical to do in order for us to continue to thrive as a leading global firm.

What if this hypothesis never materialises?

This hypothesis brings up emotional and political issues, not unlike the reactions provoked by the ways in which new legal tech/AI is changing how we deliver legal services. Like climate change, some will deny Lawber, calling it impossible. Others may accept it, though they’ll leave the planning to the next generation because they hope that the consequences will be felt only ‘after I retire’. But a few understand the urgency, and will sound the alarm for their peers. It is this last group that firm leaders and business services professionals need to partner with to prepare appropriately.

Whether you believe that Lawber is coming or not, we want to ensure that our lawyers will rise to the top through the quality of their work, and through the efficient and transparent delivery of our services that will result in highly satisfied clients. Because we believe that our clients want and deserve it and that they will reward us for it.

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Lawyers, know your tech

Given the amount of technology systems corporate legal departments and law firms deploy, the actual use of those solutions are often limited by organisations’ apparent understanding of the description of the systems or indeed the functional requirement they implemented the products for.

There are so many point solutions that law firms and in-house legal departments deploy – document management, records management, case management, matter management, customer relationship management, and so on – the list is endless.

In doing so, they are pigeon holing the solution based on their perceived understanding of what the system can deliver. A better approach would be to focus on the business requirement and then optimise the use of the solution, beyond the preconceived notions of their potential.

Business requirement trumps product name

A Swiss investment bank is a good example. This corporate is utilising its document and email management system to leverage knowledge, enterprise-wide. To elaborate, the legal department at this bank was looking for a central repository where lawyers could share precedents, law firm news, legal advice, and so on with colleagues across the globe.

At the same time, the department wanted the ability to establish a taxonomy that would easily classify and store documents, redact information when loading documents into this repository, and even raise alerts if a document contained questionable legal advice.

Additionally, the department wanted the capability to track old and outdated documents using workflow so the librarian could be alerted when a document was close to expiring, to facilitate records management. Last, but not least, it wanted to reduce the amount of expenditure on external counsel and measure savings.

So, the traditional approach would have been to deploy point solutions for knowledge management, records management, document management, and possibly legal spend management, to meet all the above business requirements. However, the bank’s legal department, following an evaluation of the functional technology applications available and its business requirement, deployed a solution that is typically branded as a ‘document management’ solution, as a veritable knowledge management system.

The legal team figured that document management capability is fundamental to knowledge management. The document management functionality would allow the department to securely store documents, help maintain the accuracy of the data in the repository, facilitate authorisation-based access to information – especially as the repository would be available to colleagues in EMEA, APAC, and the US, and holistically enable information lifecycle management. This would then enable knowledge management across the teams. It’s an astute approach as the return on investment from this single platform is far greater than numerous point solutions.

Not to diminish the capabilities and value of point solutions, but there can be considerable ‘bloatware’ in single functional applications. Consider the features available to us as individuals in office productivity applications such as Word, Excel, and PowerPoint. It isn’t far-fetched to say that potentially, the majority may only be using 20% of the functionality available in these applications, if that. The same applies to the specific functional applications.

A platform approach

The secret lies in taking a platform approach to technology adoption – and the business requirement should drive system adoption. This will ensure that the functionality capabilities are comprehensive, and the security and governance management components are taken care off, which in today’s environment are crucial.

From a user perspective too, working within a single environment enhances productivity and efficiency. Flitting between different applications is time consuming, which is possibly one of the biggest reasons for poor user adoption of many functional applications in organisations. People tend to work with applications that offer a work environment closest to their needs.

A platform approach also allows the solution to be better configured to the needs of a wider set of users. This in turn enables organisations to undertake things like change management, which facilitates user adoption. As an example, one law firm made significant investment in a document management system, but only had five users because the solution simply did not meet the requirements of their fee earners. Network file shares worked better for them.

Business requirement drives solution deployment

Additionally, far too often, law firms and in-house legal departments purchase solutions based on price, which is false economy. Consider the case of a legal team at a major European public infrastructure and transportation company which purchased a low-cost case management solution when its main requirement was a document management system.

After years of struggling, the company eventually replaced the case management system with a document management solution, which was configured to provide ‘light case management’ capability. This has proven to be much more suited to their business requirements and user adoption, and satisfaction has been much better. Correcting the mistake a few years later, of course, came at a significant price, which was highly avoidable.

In short, technology adoption must be driven by business requirement, not common nomenclature and product-name driven perceptions.

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Where next for London as a disputes centre?

photo of london city

The first London International Disputes Week took place in May and successfully served to highlight why London is likely to remain a leading international disputes hub in the years to come – a huge concentration of talent across disputes disciplines, a favourable, popular and flexible legal system, the power of the English language, and much more.

What it also did was allow the disputes community to consider some of the very real threats to that leading position. While it’s not fair to suggest that London’s position as a key disputes hub is in grave danger, now more than ever it must not rest on its laurels, as other disputes hubs innovate quickly and seek to take advantage of Brexit.

The threat to London’s position from Brexit is often overblown, but it certainly isn’t to be overlooked. The now seemingly dead-in-the-water withdrawal agreement and political declaration do not even mention the UK’s and EU’s long-term relations where commercial disputes are concerned. This leaves open the question of whether UK jurisdiction agreements will be supported by EU or EFTA rules after Brexit, and whether those rules will guarantee the enforceability of UK judgments in Europe.

The immediate question is, will this uncertainty really affect parties’ willingness to choose London courts as the forum for their disputes? Whatever happens with Brexit, London’s greatest strength is that England has established itself as the leading commercial jurisdiction largely because of its highly evolved common law, which is not fundamentally affected by EU legal principles, and so won’t change.

Crucially, the choice of English law will also be unaffected by Brexit, since EU rules (which will be copied into the UK statute book) respect parties’ choice of law wherever that law originates. This is the principle of ‘universal application’ enshrined in the Rome Regulations. Once a party decides that it wants its rights and obligations to be defined and governed by English law, it is logical for it to choose English courts or arbitration too. London has a leading reputation in any event, based on the impartiality, commercial-mindedness and experience of its arbitrators and judges.

In a way, Brexit might even help. As long as the UK was part of the EU, its courts were not permitted to issue injunctions prohibiting litigation in other Member States in breach of a jurisdiction or arbitration clause. If the UK leaves the EU’s jurisdiction and enforcement regime, that will change. Parties have a right in common law to sue an offending party for loss caused by the breach, and litigation overseas will not usually stop an English court trying a case where the parties have given it exclusive jurisdiction.

Brexit is serving to focus the UK on becoming more competitive, not only in Europe but globally, as other international disputes hubs emerge and innovate in Asia and elsewhere. This is to some extent a matter of money. Litigation and arbitration in London come at a cost (albeit a reduced one thanks to the weak pound), and lawyers in competing jurisdictions were always ready to say that they could try disputes more cheaply. Now several EU jurisdictions are offering English language courts too.

To address this, the judiciary is making strenuous efforts to transform English court procedure so that costs are kept strictly under control. First, costs management was introduced by Lord Justice Jackson in 2013, and the disclosure/discovery of documents (the main driver of litigation costs) was reformed in January 2019, so that in many courts parties are forced to limit the documents they disclose (or ask to see) to those needed to resolve the specific issues in dispute. This mimics international arbitration, without losing the benefits of the distinctive English courts’ ‘cards on the table’ approach to documents and evidence generally.

The reforms have also given a boost to document review technology, which increasingly allows computers to take the strain of document review. And London also has a ready availability of third party funding for both litigation and arbitration which makes legal proceedings in England financially more manageable than before.

Money, however, is not everything. Choice, specialisation, and innovation are key. London has enhanced its reputation in this regard by setting up a Financial List – in effect a new court with the ability (among other things) to try test cases involving issues of general importance to the financial and other markets. Finally, the physical infrastructure of dispute resolution in London is being transformed, with the opening of the Rolls Building for high value and complex litigation eight years ago, and the state-of-the-art International Arbitration Centre opening earlier this year in the heart of London’s legal quarter.

These moves are a key bulwark against the challenge posed from elsewhere, with stiff competition coming from new international commercial courts in Singapore, Astana, and China. Other arbitration hubs are building their own impressive infrastructure too – the Seoul arbitration centre, which opened last year, is reportedly the largest in the world.

With China very focused on becoming the home of Belt and Road related disputes and the growing economies of the ASEAN region naturally looking to their near neighbours, London has to be competitive to pick up this new work. However, what London International Disputes Week should do is give London every confidence that it can continue to compete as long as it maintains its inherent advantages while continuing to evolve and develop at pace.

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Evolve or get swallowed up

photo of cocoon

The financial crash inevitably influenced the legal market and we saw, in the UK and the US particularly, a rise in law firms adapting to serve this changing landscape and increasing levels of banking litigation. Conflicts were one the biggest drivers behind the emergence of the boutiques – Magic Circle firms were not best placed to take on the big-ticket cases against the financial institutions. Similarly, many top-flight lawyers felt ready for a change having identified the gap in the market for quality representation in matters against institutions against which traditionally many of the big City firms had been unwilling to act.

Cooke, Young & Keidan LLP (CYK) was established in 2009 in the wake of the financial crisis as a boutique City firm specialising in complex, high-value disputes, usually with an international aspect. The founding partners, and indeed all subsequent CYK lawyers, are specialist dispute resolution lawyers. Given the year we established and our conflict-free model, it was perhaps inevitable that some of our first instructions should be large and often business-critical disputes with financial institutions. Early successes against household-name financial services defendants, and their similarly well-known legal advisors, led to CYK becoming known as one of the ‘go-to’ conflict-free firms for disputes of that type. Shortly after CYK was established, London saw a surge in home grown litigation boutiques to service this market. The ‘billion-dollar boutique’ Quinn Emanuel Urquhart & Sullivan from across the pond had of course launched in the UK just prior to CYK in 2008 and no doubt its success had an impact in terms of inspiring others into action.

However, inevitably, this banking litigation boom was not going to last forever. It was predictable that the flood of the most complex and ground-breaking post-crash financial litigation would subside. So, what next for the firms which set up with this specialism at their very core? Luckily, at CYK it was always our intention to offer expertise in a range of carefully chosen practice areas – not just banking litigation. We saw the drop-off of banking work as an opportunity rather than a threat – it gave us the space to develop the range of practice areas which we had always intended and within which our lawyers had always previously operated at their former firms – financial services litigation now accounts for less than a quarter of our case-load.

However, that transition was not necessarily easy and firms set-up to service the slew of banking litigation may have experienced difficulty adapting to changes in the market. Shifting perceptions takes a long time. Hiring big name lawyers from elsewhere can help give a new practice area a jump-start. Similarly, maintaining close referral relationships always helps – the conflict-free model is still needed in the legal marketplace, whether the case is against a bank or another multinational.

Another development helps boutiques stay competitive – artificial intelligence (AI). Technological changes mean a firm no longer needs volume on the ground when it comes to dealing with a complex piece of litigation which requires thousands of documents to be sifted through by a huge team – now it’s about the right technology to help with this and AI can do a job in just a few hours which used to take a large team days to complete.

Evolve or die, as the saying goes. In the boutique litigation world, it might be more of a case of evolve or get swallowed up – in the US particularly we’ve seen a number of litigation boutiques acquired by larger firms.

But what’s in store for the future of disputes? Our busiest practice areas point to the future – civil fraud, international arbitration, financial services regulatory, fintech, and company and partnership disputes. Again, looking to how the technology revolution is changing the legal market we certainly expect to see more cases which encompass an element of this. For example, we recently represented the Chinese claimant in CMOC v Persons Unknown – a high-profile commercial cyber-fraud case which is likely to assist future victims of fraud in seeking to recover stolen assets.

Still looking to the future, the appetite from lawyers keen to work for boutiques hasn’t abated which is not surprising given that there is an ever-increasing acceptance of the business model by the industry and clients. Boutiques often offer a different experience in terms of culture and personal development while still providing the opportunity to work on big-name cases and maintaining a good work-life balance. This has meant CYK has attracted excellent associates who are passionate about the business model and are as invested in the firm and its development and success as the founding partners.

Banking litigation may be dying but the boutique model is not. For firms like ours, which prefer to remain independent and have always planned for the evolving market and the number of banking-related disputes drying up, there is certainly space to grow and thrive.

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Knowing what clients want and what winds them up

Rebecca Priestly

As highlighted in previous issues of fivehundred, the backgrounds and experiences of chambers chief executives are broad and varied; they come from the traditional clerking ranks, the armed forces, the public sector, education, marketing and advertising, and, yes, the legal profession itself. Rebecca Priestley comes from the latter, but unlike her contemporaries she has held a role at every stage of the legal supply chain, giving her a unique insight into what lawyers of all stripes can and must do better.

Beginning her legal career as a barrister at 2 Gray’s Inn Square, Priestley practised employment and family law between 1994 and 2000 before cross-qualifying as a solicitor and joining Simmons & Simmons’ employment team in London. After another six years of private practice, she moved in-house, joining Standard Chartered Bank in 2006 as head of HR legal, managing the bank’s employment issues across Europe, the Americas, Asia, Africa, and the Middle East. Five years on, Priestley moved to Lloyds Banking Group where she spent eight years in various roles, first as head of HR legal and finally people director, employee relations and policy transformation.

In January 2019, Priestley’s career came full circle when she returned to the Bar as the new CEO of Outer Temple Chambers. UK Bar editor John van der Luit-Drummond sat down with Priestley to talk about her career to date, the evolution of the Bar, and her aspirations for chambers. John van der Luit-Drummond: Barrister, solicitor, in-house counsel – how has your journey through the legal professions and various businesses prepared you for your new role in chambers?

Rebecca Priestley: I’ve been fortunate to hold roles which have given me a very rounded view of legal services, a good perspective on what clients are looking for in legal advice, and an appreciation of the business context in which the advice plays out.

I have also been fortunate to work in a banking environment, which is having to change at an unprecedented pace to keep up with changing customer needs and behaviours, driven by digital disruption (‘The fourth industrial revolution’). Customer expectations are now influenced by Uber, Google, and Amazon, who provide immediate, seamless, and digital services. This digital disruption has brought about more change in the last decade to the way banking services are provided than we’ve seen in the previous 250 years. Continuing to provide banking services in the same way to customers is not an option.

Banks have had to adapt very quickly, transforming both the way they provide customer services and their internal ways of working and skill sets. Part of my role at Lloyds was to design people policies and promote positive employee relations to underpin this fundamental transformation.

JvdLD: How does your experience in the banking sector translate to the Bar?

RP: Working in banking focuses you on thinking about customers first and the ‘end-to-end customer experience’. This holds good in any professional services environment. For a barrister, being good on the day is now a given. What distinguishes and influences return instructions is your client’s entire experience from first interaction with chambers to follow up at the end of the case.

Solicitors rightly expect people skills as well as intellect – working well as part of a team is critical, as is the ability to read the room, manage clients well, and adapt to changing dynamics. If met with unresponsive, arrogant or unhelpful service at any point of that interaction, clients may simply move their custom elsewhere.

For the Bar, while the core offering of excellent advice and advocacy remains the same, the external environment to which those services are being supplied has changed significantly, influencing how clients expect to access, experience, and fund services.

JvdLD: In your LinkedIn bio you highlight having ‘a track record of implementing strategic organisational and cultural change, and fostering positive employee relations’. How is this likely to play in chambers, which is obviously very different from a law firm or bank?

RP: You’re right! A chambers is a world away from a FTSE 100 company with 70,000 employees. However, underpinning positive employee relations and culture in an organisation of any size is good, transparent communication, being clear about your common goals and values and what you stand for, working collaboratively to achieve results and fostering engagement and wellbeing, and a sense of collective pride in your brand and purpose. And also making sure people have some fun!

JvdLD: More and more chambers are embracing the CEO role. For this position, do you think having a legal background gives you an advantage over those without one?

RP: I wouldn’t go so far as to say that having a legal background is an advantage over those without such a background in the CEO role. There are some very successful chambers CEOs who don’t have a legal background. Having a strong customer-oriented approach and business development skills is key.

However, having practised myself, I certainly find it helpful as I can empathise with the challenges facing barristers. I also, I hope, have a fair appreciation of what users of legal services are looking for, and certainly what may wind them up. It also means you are fairly well networked within the legal profession and hopefully trusted to understand the issues clients may be facing in managing their practices and costs.

JvdLD: So, what do you think solicitors and barristers could be better at? What winds up clients?

RP: Businesses want certainty and to have clear commercial risk-based legal analysis and recommendations, rooted in an understanding of their business environment. Appreciating the potential financial, reputational, and practical consequences for your client of taking a certain course is important.

When you are presenting a legal issue for discussion and decision, to an executive committee or board, you need to be succinct. You will have a short slot in a busy agenda, and your presentation will be in a set format, with an executive summary.

In that context, a lengthy legal opinion, without a brief summary of the advice, options and recommendations, is not helpful. Solicitors and barristers could help in-house counsel by understanding their internal business and governance and asking clients how they want advice presented. That’s why secondments for barristers and solicitors can be helpful as an eye opener to the realities of the commercial world in which the advice is being given, and building a deeper understanding of your client’s business.

Pricing is also key. All clients, including FTSE 100s, have costs pressures and want clarity and certainty on costs as far as possible. Moving to more predictable, flexible, fee arrangements is definitely an ongoing trend.

Working with a strong team mentality is critical. I think chambers could market more around team and practice area capabilities, as against the individual. Strong personal relationships with your trusted legal advisers remains critical, but clients are also very open to being offered teams, particularly to support complex needs. Increasingly clients also rightly expect to be offered diverse teams in the provision of legal services.

JvdLD: What attracted you to return to chambers after almost two decades away?

RP: I have great admiration for the Bar and respect for barristers. The Bar has maintained its reputation for excellence and integrity at a time when many professions have suffered a crisis in public confidence. The independence of the Bar and its commitment to uphold the rule of law is a core pillar of our democracy, which is particularly important in our current turbulent times.

Being a barrister requires resilience, courage, and intelligence. Of all the things I have done in my career, appearing in court was the most daunting – no board room presentation comes close. It’s also a phenomenal training ground – having to marshal facts under pressure, and manage your case, client, opponent, the judge, and your nerves all in a day’s work.

I valued the opportunity to return to the Bar, being close to where law is being made, and look forward to using my experience over the last 20 years, in private practice and financial services, to support barristers discharging their important role.

JvdLD: How do you think the Bar has evolved since you were in practice?

RP: In some ways it has evolved, and in others the pace of change has been disappointingly slow.

On the positive side, I think the Bar has become more self-aware and commercial and recognised the need to adapt to changing client needs and a more competitive market. Some chambers have moved faster on this than others. One of the reasons I was attracted to Outer Temple Chambers is that it is progressive, innovative, and international. For example, OTC has opened offices in Dubai, Abu Dhabi, and New York.

Andrew Spink QC, one of our heads of chambers, is also chair of the Commercial Bar Association, and a justice in the Astana International Financial Centre in Kazakhstan which was officially launched last year and, like the DIFC and ADGM, affords opportunities for the Bar to advise and appear in international financial disputes in those forums. I also like the fact that Outer Temple also has a strong commitment to equality and diversity, with ‘blind’ recruitment practices, and Platinum Investor in People status.

JvdLD: That’s the positive. What about the negative?

RP: Where the pace of change has been disappointingly slow, is on diversity. On gender diversity, only 16% of silks are female. I think this needs a raft of measures and cultural change to shift the dial. I also think the Bar should set a target for female silks – I’d like to see 50% by 2025. I think if individual chambers made diversity a core business issue – rather than a side ‘HR’ issue – and set a target for female and BAME silks with a deadline, this would help shift the dial.

Setting a target is an important statement of intent and prioritisation, and what gets measured tends to get done. The target is tracked and measures are put in place to support career progression. This would reflect what happened in the City.

Helen Morrissey’s established the 30% Club in 2010, with a target to reach 30% gender diversity on FTSE 100 boards, which was met by 2018. Critical to this success was that boards made gender diversity a business priority, recognising that diversity positively impacts decision making and profitability. It makes business sense for your workforce to mirror your client base and increasingly in-house counsel and solicitors expect chambers to present diverse barrister panels.

JvdLD: What practical advice would you give to women looking to progress at the Bar?

RP: Be confident in your abilities and know your value and worth and expect support from your chambers and clerking team to help structure and plan your career progression.

Recognise that your career is a marathon not a sprint. Careers are getting longer and in the future people will change careers far more often. In the workplace more broadly, something like 40% of today’s jobs won’t exist in 2035, driven by digital disruption. Coming to the Bar after a career break or doing other jobs is often very beneficial-giving you a broader skill set and perspective. The good thing now is that there is plenty of time to flex what you do and when you may want to push for silk.

At Outer Temple we recognise that there is considerable scope to structure careers so that, for example, you may not want to be in court five days a week when you have young children, but you may be happy to ramp this up when they are older and in the run up to a silk application.

In addition, choose the right partner – look at Ruth Bader Ginsberg! Take care of your own health and wellbeing, and be kind to yourself. Quiet the inner self critic – we’re often our own worst critics; and have a strong friendship group and support other women. Madeleine Albright was quite right in saying there is a special place reserved in hell for women who don’t support other women!

In addition to the practical measures which chambers can put in place to help support women’s progress – mentoring, career breaks if needed, structured career planning – we are beginning to see cultural change in a gradual move towards greater equality in child care, underpinned by shared parental leave policies. The more mothers and fathers share responsibility for child care, the healthier an environment we create for both men and women and the more we decrease the adverse impact on women of shouldering all the responsibility for children’s care.

JvdLD: You’re also a non-executive director of the City Mental Health Alliance, a collection of FTSE 100 financial services companies and Magic Circle law firms, established to promote wellbeing in the City and breakdown stigma around mental ill health. What can the Bar do to promote better wellbeing?

RP: We all have mental health in the same way we all have physical health. One in four of us will be affected by poor mental health at some point in our lives. The chances of us being affected or a member of our family is statistically very high. While some of us may have a condition we manage, others may find our mental health impacted adversely at times, whether it’s by work-related stress, or life events such as bereavement, divorce, or the mental or physical ill health of our loved ones.

The Bar is in many ways behind the City in support and openness around mental health. This is perhaps not surprising. Working long hours, often in isolation and under considerable pressure in an ‘always on’ digital environment clearly makes you vulnerable to poor mental health. Being self- employed and feeling you are instructed for your personal resilience as well as your intellect means those whose mental health is under threat may be less likely to be open about it or to seek help, and chambers may not have the infrastructure in place to help.

I think the Bar is addressing this issue, and a lot of great work has been done by the Bar Council, but more is needed, particularly to encourage openness and destigmatise mental ill health. This will take some courageous senior barristers to act as strong role models by speaking up about their mental health, how they sought help, and the fact it was not career ending.

This is absolutely not about asking everyone to bare their soul. I fully appreciate the desire for privacy. However, it is important to break down stigma and encourage openness and self-help. We know suicide is the biggest killer of men under 50, and if some senior male leaders take this brave step it will encourage others to know they can feel safe in reaching out for help when they need it.

JvdLD: What will you do at Outer Temple to promote better wellbeing?

RP: Within chambers, there is positive feeling about wellbeing as it is a friendly supportive set and people feel able to talk to colleagues when they feel under stress. However, I do want to put in place mental health champions who have been on the Mental Health First Aid training and can act as confidantes when people want a safe conversation and access support.

I am also looking at getting in speakers on sleep (often the bellwether of good mental health) and to see if we can run some yoga classes. I’m even considering yoga talks – legal update seminars followed by yoga!

JvdLD: Finally, what is your vision for the future of Outer Temple?

RP: I am very ambitious for chambers, and excited about our future. It’s a large set, with 86 barristers and 24 silks, and highly ranked in a range of specialist practice areas. It has a wealth of talented, professional, and personable people, working with a very strong customer-focused ethic, and culture of consistent improvement. I want to help build the business, including internationally and enhance our profile and market recognition, as an innovative and modern top-tier set, famous for its customer service and helping deliver constructive legal solutions.

I’ve been out meeting our clients over the last few months, and it’s been great hearing their feedback about chambers. Common themes are that we are professional, personable, modern, and progressive. Key to this is our clerks’ and barristers’ ability to be adaptable, agile, and responsive, and to operate as part of their legal team. They also value our barristers’ ability to read a conference room as well as a court room, to interact with clients well and to adapt quickly to changing dynamics.

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Don’t be afraid of ‘coming out’

illustration of opening curtains to rainbow

How would you rate the legal profession on LGBT+ inclusion? What more needs to be done?

We have made enormous strides on rights for and attitudes towards LGBT+ people over recent years and I feel incredibly lucky to be living in the UK at this time. But challenges remain. A random sample might include:

  • outright (and ongoing) disdain from some people of faith (and I say this as a committed Christian myself);
  • queries about my sense of humour (or not) when I tackle out of order banter;
  • inaccurate assumptions – about all manner of things; and
  • open aggression, even from members of my own profession, including by way of online comments on articles such as this.

Also, what many people don’t realise is that coming out isn’t a ‘one off’ occasion. When I meet new colleagues or clients, it is natural to get asked questions about my non-work life, from neutral questions such as ‘what did you do over the weekend?’, through to more loaded ones about the occupation of my fictional wife. This means I, along with the vast majority of LGBT+ people, have to make considered decisions on a daily basis of whether to ‘come out’ or not.

I think this is especially difficult for LGBT+ people entering the workplace for the first time. Many LGBT+ people come out at university, but a staggering 60% go back into the closet when they start their careers. I believe employers and the profession have a responsibility for creating workplaces where everyone can be themselves. Not only is this morally the right thing to do, but evidence demonstrates that this makes commercial sense too.

Being open and authentic at work means you’ll be more productive, loyal to your employer, and better able to serve your clients. I have found that being open with my clients about my sexual orientation has almost always resulted in better and more open working relationships.

I am hugely positive about the outlook for the industry. Indeed, Stonewall’s list of Top 100 Employers indicates that the legal profession is, in many ways, leading the pack. We should, however, not be complacent about remaining challenges. The Law Society’s LGBT+ Lawyers Committee are committed to delivering initiatives aimed at supporting LGBT+ solicitors nationwide, targeting those who often still feel marginalised and isolated.

I also think the issue of intersectionality remains central. LGBT+ people of colour, those from working class backgrounds, or those with disabilities may experience compounded challenges and inequality. As a profession, we should actively seek their voices and work to support them.

In addition, there is much more work to be done in ensuring that diverse voices from within the LGBT+ community, including those who identify as trans and non-binary, are heard and represented in the profession. Happily, we are up for the challenge.

How can law firms create more LGBT+ inclusive workplaces?

The vast majority of major law firms will have LGBT+ inclusive policies and procedures. The best ones will be translating these into tangible actions. Doing the right thing is vastly more powerful and just saying it. This will vary across different firms, but at Travers Smith we have done this in a number of ways; from delivering training session on LGBT+ inclusive language to implementing an innovative mentoring programme for LGBT+ students in partnership with the charity Just Like Us. Staff and partner engagement is crucial – creating an LGBT+ inclusive workplace is not solely the responsibility of LGBT+ people. To engage with non-LGBT+ people working at the firm, we rolled out a Rainbow Laces campaign to encourage our various sports teams to ‘lace up for equality’ and signal their support for LGBT+ inclusion. The laces, and the initiative itself, have proved especially popular and have been embraced not only by colleagues, but also by many of their friends and families, as well as children in their own local sports clubs, teams and schools. A simple, yet effective way of engaging with a broad audience and in raising awareness of LGBT+ matters.

There are plenty of other examples of good practice on the LGBT+ Lawyers Division website and LinkedIn page.

You mentioned the trans community earlier. What progress has been made there in regards inclusivity?

Great progress has been made across the UK in terms of LGB inclusion. However, many laws and systems which were amended or implemented have not recognised or accommodated trans communities – particularly relating to health and social care, marriage, families and gender recognition.

Barriers to full inclusion, and a lack of awareness of the lived experiences of trans people can lead to verbal, physical, and psychological abuse, as well as discrimination in many walks of life. For example, almost half (48%) of trans people in Britain have attempted suicide at least once; 84% have thought about it. Two in five (41%) trans people have been attacked or threatened with violence in the last five years. Some 62% have experienced harassment from strangers in public places.

A report published by Stonewall indicated that two in five trans people (41%) and three in ten non-binary people (31%) have experienced a hate crime or incident because of their gender identity in the last 12 months. Even more worryingly, Stonewall’s research on trans inclusion in schools shows that four in five young trans people have self-harmed, and nearly half of have attempted to take their own life.

We are also seeing an increasing number of people identifying as trans, and feeling more comfortable in expressing themselves in ways other than simply male or female. A recent University of Oxford survey showed that 22% of undergraduate students identify as LGB or T. At firm event last year for LGBT+ students, over a quarter of identified as trans. To ensure we remain an attractive employer, and are able to effectively engage with an emerging generation, we need to be inclusive in our approach to gender identity.

Like any approach to creating a more inclusive culture, being trans inclusive involves examining policies and practices across a number of areas. In consultation with trans inclusion experts, and members of the trans community, we recently reviewed the trans inclusive nature of all our workplace policies, including dress code and use of toilet facilities, and drafted a series of good practice guides and manager toolkits on supporting trans staff and partners.

To help raise awareness of trans inclusion, and of issues which can face trans people working in the legal sector, we have also held a series of firm-wide events and seminars, including some in partnership with The Law Society’s LGBT+ Division to ensure we are reaching as wide and diverse an audience as possible.

For those interested in engaging with The Law Society on LGBT+ inclusion, membership of the LGBT+ Lawyers Division is free and open to all solicitors and their allies. You can read more by clicking the link below

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Latham & Watkins and Kirkland & Ellis lead the pack

Chalk up another completed guide. Now in our 12th year covering the US market, The Legal 500 United States has matured and expanded in line with its impending teens, with well over 300 leading firms earning a ranking in the 2019 guide. The past year saw some significant firm mergers, partner moves, and, on our side, the introduction of new ranking sections; but before we get there, let’s take a quick look at some market observations that came to light during the research.

Where to start? Well, you may have noticed that it’s almost impossible to talk about the United States without mentioning President Donald Trump. You may have also noticed that the 45th US President has at least a perceived impact on nearly every aspect of the domestic economy, and thus on the wider global economy. It’s difficult to determine which segment of the commercial landscape has been most affected by the current administration. From environmental protection to immigration and financial services to corporate taxation, lawyers have reported periods of both regulatory limbo and flurries of updated and anticipated compliance activity.

In terms of commercial activity, 2018 was one of the strongest years for M&A since the turn of the century. Some $3.5tn of global M&A deals were closed in 2018, while domestic M&A – in part driven by 2018’s sweeping tax reforms – increased by over 30% in Q3 when compared to 2017. Equity markets as well bucked the global trend, with domestic equity deals showing a slight increase in volume and IPO value year-on-year, despite a few bumps in Q2 and a mercurial Q4. Corporate debt, however, took a significant hit, and global offerings also finished down year-on-year.

Looking at our coverage of the US legal market, this year’s guide features a brand new Delaware law section, which highlights some of the leading firms providing specialised advice on the company law of the ‘First State’. Further, shareholder activism was introduced as a standalone practice area to showcase an active segment of the corporate and funds market, and a skill set that is increasingly relied upon as activist strategies have started to be utilised internationally.

The market saw dozens of high-profile partner moves across numerous practice areas, with firms including Paul, Weiss, Rifkind, Wharton & Garrison, DLA Piper, Orrick Herrington & Sutcliffe, and Gibson, Dunn & Crutcher among the market’s most active hirers. In addition, 2018 saw the merger of Andrews Kurth Kenyon and Hunton & Williams, as well as that of Foley & Lardner and Gardere Wynn Sewell. Other market moves included the transatlantic combination of Bryan Cave and UK-based Berwin Leighton Paisner, and the merger of Fitzpatrick, Cella, Harper & Scinto into Venable.

As the two largest firms in the world by revenue, it is perhaps unsurprising that Latham & Watkins and Kirkland & Ellis have the most top-tier rankings in our latest guide; 36 and 24, respectively. The only other firms to have top-tier rankings in more than 20 tables are Cleary Gottlieb Steen & Hamilton with 22, and Simpson Thacher & Bartlett just one behind at 21. Lathams and Kirkland also earned among the most rankings total (72 and 62, respectively), while Mayer Brown and Morgan, Lewis & Bockius each made their way into 65 ranking tables.

Seven firms in the US guide have at least 30 lawyers who have earned the title of a ‘leading individual’: Mayer Brown, Hogan Lovells, Gibson, Dunn, David Polk & Wardwell, Simpson Thacher, Kirkland, and Lathams, the last of which leads the pack with an impressive 61 partners recognized as market leaders. Some of these teams have also seen a number of their junior practitioners recognised as next generation partners or rising star associates. Other firms noted for their promising up-and-comers include Weil, Gotshal & Manges and Morgan Lewis.

Congratulations to every firm, team, and individual that made it into our rankings and leader tables this year. It’s been said dozens of times before, but thanks also to everyone who participated in the research and contributed to making our rankings accurate and comprehensive. We’re looking forward to doing it all again next year, but until then, enjoy the summer!

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Is funding defendants the future of disputes?

illustration of hand holding dollar sign

Despite initial reluctance from corporates and law firms, litigation funding has become a more accepted feature of the US commercial litigation landscape, although it has only been largely embraced by plaintiffs thus far. That, however, may be about to change as funders are expected to step up their pursuit of defendants.

Litigation funders provide all or some of the financing to cover the costs of disputes. In return, they receive a slice of the winnings if the case is successful; this may be a percentage of the damages or a multiple of the amount of funding provided. If the case is not successful, the funder may simply lose its investment.

For investors, it is easy to see the allure of an asset class which is uncorrelated with economic cycles, particularly in the context of low interest rates or stock market volatility. Litigation funding has proved an attractive option for major investors, including hedge funds. The potential returns are large, although the unpredictability of litigation, and the confidentiality of the agreements, can make it a tricky asset class to analyse.

Third-party funding has not always been greeted with open arms, though. Steven Davidson, partner at Steptoe & Johnson, notes how the largest law firms have historically represented defendants, rather than plaintiffs, in personal injury, wrongful death, and mass tort litigation, which may account for such firms feeling a level of suspicion towards funders.

‘I think that’s changed, because a lot of the litigation funding has moved into traditional commercial disputes, where there isn’t necessarily a real dichotomy between plaintiff and defendant,’ Davidson says. After all, he adds, ‘it’s certainly commonplace for a large company to have a commercial dispute with another large company or a country’.

Mark Goodman, co-chair of Debevoise & Plimpton’s litigation team, notes: ‘Litigation funding is more routinely being used to fund business-to-business disputes, which are the types of cases in which large, traditional firms feel comfortable being involved. Commercial contract disputes, for example, don’t raise the kinds of conflicts for firms like our firm that might arise in, for example, mass tort cases.’

Funders are also increasingly visible in the market, touting for work. ‘More and more funders are reaching out to lawyers or law firms to see whether their clients would like to consider litigation funding,’ says Tad O’Connor, partner at Kasowitz Benson Torres. ‘Ten years ago it wasn’t very common, but now, most lawyers who are handling large, sophisticated disputes will receive outreach from potential litigation funders.’

>Access to justice?

Proponents of litigation funding argue that it allows plaintiffs to pursue meritorious claims which they may not have sufficient resources to fund themselves. This access to justice argument is certainly appealing in what can be a prohibitively expensive legal system. Not everyone shares this rosy view, however, and some commentators ask whether an industry centred on profit-making can rely on arguments about fairness.

‘One obvious area of concern is that the litigation funder will have inappropriate or undue influence on the plaintiff being funded,’ says Goodman. ‘However, in our experience, as long as we are working with a funder who is ethical and who has put in place an appropriate funding agreement and other governing documents that clearly define the funding entity’s role, this has not been an issue.’

Gerry Silver, leader of Sullivan & Worcester’s litigation group, notes that while funders typically want to receive updates on their investment, they do not dictate the strategy. ‘If the funder is aligned with the law firm, they’ll trust the firm to do what is in it and the client’s best interests. Then it’s all set up so that the funder benefits too.’

Still, the fear that funders could try to direct a case is a pervasive one. Others question whether the introduction of a third party could reduce the plaintiff’s own financial incentive enough to affect their interest in the case.

There are also operational questions. As large amounts of money are now being directed towards litigation funding, some fear this could lead to weak claims being pursued, simply because money is available. The obvious counterargument is that funders want to make good returns, and will only invest in cases likely to succeed.

Unsurprisingly then, successful funders will employ experienced lawyers, previously from leading law firms, who can effectively analyse a case. ‘These people know what they are doing,’ says Silver. ‘They know what the problems could be, and they know the upside and the potential cost.’

The best-known funders are those which have been around the longest, like Burford Capital and Bentham IMF, but there are newer players too. ‘The number of litigation funders seems to be increasing, almost exponentially. There used to be a handful of big players, but we’re learning about lots of new entrants to the market,’ says Tariq Mundiya, chair of litigation at Willkie Farr & Gallagher. ‘The more new entrants to the market there are, the more competitive and potentially saturated the market for litigation funding becomes.’

>Disclosure issues

As third-party funding becomes increasingly prevalent, the courts have more opportunity to consider the technical issues which the industry raises. ‘If the plaintiff is receiving litigation funding, a key question is whether that should be automatically discoverable,’ says Mundiya. ‘Should there be mandatory disclosure? There are arguments on both sides, but I think that transparency in a dispute always helps.’

Many courts have thus far been reluctant to compel disclosure of funding documents, often referring to the work-product doctrine, which protects from discovery certain materials prepared in anticipation of litigation.

In Viamedia Inc v Comcast Corporation et al, before the Northern District of Illinois in 2017, the defendant sought production of documents disclosed by the plaintiff to prospective funders. The court found the documents were shielded from discovery, and that protection had not been waived.

This decision concurred with an earlier case, Miller UK Ltd v Caterpillar Inc. Here, the court held that materials provided to prospective funders under a nondisclosure agreement were protected.

In 2018, the New York City Bar Association established a litigation funding working group, which is studying the issues involved in third-party financing, including disclosure. It expects to publish a report by the end of 2019 and has invited comments from stakeholders.

‘Although the practice of litigation funding has become much more prevalent,’ says Davidson, ‘it is still not exactly clear whether courts and arbitral bodies will just accept it as a normal part of the litigation process, or whether they’ll show some scepticism towards it.’ While it is clear litigation funding is playing a role in the US commercial litigation market, what remains to be seen is how far new developments, such as those in defence-side funding, might impact the industry – and the litigation landscape – in the future.

‘There’s a fair amount of money in the market from litigation funders and other investment vehicles – like hedge funds – and they’ll be looking for new ways to make investments,’ remarks Davidson. ‘Funders moving to the defence side could be the next trend.’

Davidson is not the only lawyer to speculate on funders investing in defendants' cases in the near future. How this could work in practice, however, is not yet clear, but the legal market – and this particular researcher – will no doubt be watching with interest.