Emerging Trends Series: Trends in Complex Commercial Litigation

NET WORK

EMERGING TRENDS SERIES COMPLEX COMMERCIAL LITIGATION Elizabeth Brandon, Partner, Reed Smith

EXECUTIVE SUMMARY

EMERGING TRENDS SERIES NETWORK

Emerging Trends in Complex Commercial Litigation

Reed Smith’s Elizabeth Brandon BIHC recently spoke with Elizabeth Brandon, a partner in Reed Smith’s Dallas office who is a trial lawyer with a specialization in trials, commercial and shareholder disputes, and complex cases.

Q: W hat are trends you see in commercial litigation and what is driving these trends?

A:

The primary trend is that more disputes are actually being litigated—at least through summary judgment, and some to trial. There are a number of factors underlying this. As jury awards have escalated, prevailing through trial and appeal is an effective tool to reverse the trend.

But the past two years have created additional drivers. The pandemic resulted in a backlog of cases, leading judges to be proactive to move cases along quickly as a means of encouraging parties to resolve cases through settlement or through trial. In addition, we have seen an uptick in the number of cases filed—many stemmed from bad deals made during the pandemic, PPP-related disputes, delayed filings, and other economic factors.

Aside from the pandemic, we expect other trends in complex litigation to include litigation related to energy and commodities, especially in light of world events, and logistics- and transportation-related fields. More generally, force majeure is no longer the prevailing doctrine; rather, parties are quick to litigate when someone fails to perform under the contract.

Q:

What are some best practices for GCs and companies contending with this litigation environment?

A:

Of course, our clients are closely watching their outside counsel budget, but the most efficient clients work with a diverse bench of outside counsel on proactive matter management. This includes front-end cost-benefit and risk analysis, staffing, and regular case assessments. When my clients are highly involved in a given matter, we can be more efficient in handling the representation.

Specifically, I find it optimal to meet with clients at least bi-weekly, if not weekly. We use this time to conduct a thorough analysis, consider major issues holistically, and adjust strategy as needed. Regular discussions about case strategy—not just perfunctory reporting of case events—has been the number-one most effective client relationship process.

Q: H ow should GCs and in-house counsel engage their outside firms?

A:

When I have a close relationship with a client and I have a good sense of their day-to-day issues, I am better equipped to support them. In addition, I stay current on issues my clients face by reading the SEC filings of publicly traded companies, The Wall Street Journal, and other business and world event news. I am able to advise them about trends I see on the horizon.

While outside counsel is always available when there is an emergency, it is best to reach out on a sunny day. Much of this falls on outside counsel to be intentional in connecting with in-house counsel.

Conversations—maybe over lunch—that are not limited to a particular matter are critical to build interpersonal relationships and trust. After all, practicing law is not solely about the law; it’s also about the underlying relationship that engenders a client to trust the advice of her outside counsel.

EMERGING TRENDS INTERVIEW SERIES

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EMERGING TRENDS SERIES NETWORK About the BIHC Network & Emerging Trends The Black In-House Counsel (BIHC) Network works with legal departments and law firms to advance Diversity, Equity, and Inclusion in the legal profession. We create content, events, networks, and professional development training for corporate legal departments and law firms. A key part of our mission is to showcase the talents of leading lawyers of color in top law firms to in-house legal departments.

Emerging Trends features insights from leading partners of color on key trends shaping the business landscape over the next 12 months. Each Emerging Trends briefing provides concise information on what general counsel and boards need to know about and best practices in how to approach this topic.

BIHC is pleased to hear from the following Reed Smith partners in the Emerging Trends Series:

Elizabeth Brandon

Liza Craig

Partner

Partner

DALLAS Commercial Litigation

WASHINGTON, D.C. Global Regulatory Enforcement

Anthony Crawford

Stephanie Wilson

Partner

Partner

NEW YORK Insurance Coverage

PRINCETON, NEW JERSEY Business & Finance – Financial Industry EMERGING TRENDS INTERVIEW SERIES

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