Complex litigation. It’s a synonym for high stress, and it’s daunting for law firms, lawyers and the people who support them.
What exactly does the term complex litigation mean?
It generally signifies a case with high stakes, complicated procedures, multiple parties, multiple jurisdictions, media scrutiny, lengthy discovery and big investments in time and money. Class actions, international arbitration, intellectual property, and contract disputes with subcontractors are a few typical examples. We recently handled an $8.6 billion construction litigation case involving more than 900 parties. That’s complex litigation, and there’s no shortage of it.
Norton Rose Fulbright last year documented “an upward trend in virtually all of the metrics relating to litigation and the broader disputes area,” all of which suggest added burdens in complex cases. Their list of challenges includes:
- Increasing volumes of litigation
- More regulatory disputes
- More class actions
- More labor disputes
- More IP disputes
- Growing discovery/eDiscovery burden
- Increasing litigation costs
At last reckoning, more than 9 in 10 major mergers and acquisitions were subsequently litigated. Bet-the-company work is increasing, and complex litigation spending is holding steady even as matter count falls.
“What generally drives the type and volume of litigation is change,” writes Mark Klapow, a partner at Crowell & Moring, in its Litigation Forecast 2017 report. “[C]hange foments litigation; big change foments big litigation. And 2017 will clearly be dominated by big change – starting with a new administration with new priorities and continuing as rules and regulations are advanced or peeled back, as a new Congress advances – and tries to secure – a new agenda, as agencies find new footing, and as new judges come on the scene.”
In sum, the pressure is on lawyers, in part because there are many ways complex litigation can go wrong given the scope, complexity, time demands and information load of such cases. Experience is essential.
Don’t let depositions add to the burden
Depositions are a big part of complex litigation, and the schedule is always packed. So it’s absolutely critical that the trains run on time. Busy lawyers need to be confident that all they have to do is show up to the session with their legal minds ready to perform. All the logistics will be covered.
While deposition providers compete aggressively for lucrative complex litigation business, not every vendor can handle the pressure, volume and details. Here are six problems we often see with deposition services in complex litigation:
- Weak case management – It’s common in complex litigation to have a schedule as dense as, say, 15 depositions in 15 days in 15 states. We managed more than 500 depositions in the construction case mentioned earlier. With some depositions occurring in parallel and others requiring overnight transcript production, it’s a lot of moving parts. One small failure can bring the whole machine to a grinding halt.
- Over-standardization – Everything should be the way you want it, full stop, without your having to wrangle. For example, in which file formats do you need your transcripts? How fast do you need your transcripts finished (overnight? standard 7-10 days?)? Do you want hard copies? Rough drafts every night?
- Tech naiveté – Different law firms have different preferences on how much technology they want at depositions, but your deposition services provider must be fluent in all of it, including remote deposition technology, electronic exhibits and video-recorded
- Logistical challenges – You should have access to downtown locations in all major litigation markets. Your deposition services provider must be able to provide early, late-night, and weekend access to arbitration suites and breakout/war rooms, and arrange any required lodging and transportation.
- Transcript quality – It’s fair to expect the same experienced court reporters to be with you throughout the case. Insist they have experience in the subject matter of your case and be proficient in real-time transcription. This is the core of complex litigation support.
- Gaps in international service – International depositions, common in complex litigation, can be a big challenge for deposition services providers. Ensure they understand cross-border protocols for handling exhibits, designations, taking orders, proper transcript formatting, swearing in witnesses, deposition etiquette, and more. Your partner should have interpreters, other language experts and coverage in the all of the world’s major cities.
By considering these risks in advance, you won’t be able to rid your litigation of all of its complexity. But you can make depositions – or at least the details around them – the “easy” part. You’ll still enjoy the thrill of high stakes, but you’ll be able to stress less along the way.