Just a year and a half ago, businesses and consumers watched the world change almost overnight — and, just in the last several months, we’ve watched the world finally start to reopen. How can your organization adjust to the aspects of modern life that won’t “go back to normal” after the pandemic? We held interviews with three experts in our panel to tap into their career experience and gauge their thoughts on a shifting future under the penumbra of emergent COVID trends. Check out our first two interview stories of expert insight regarding disaster preparedness for business continuity and on consumer psychology. Continue here for thought leadership in the world of litigation.
To offer you the strongest legal expert insight, we interviewed Fred, who has spent over 30 years representing a wide variety of litigation clients. Fred spent the first four years of his career “putting bad guys in jail,” then invested his skills and thought leadership in litigating against all manner of smaller transgressions. He then moved up through the financial crimes unit, pitting him against the most powerful attorneys these villains could afford. After working closely in the political, judiciary and trial ecosystem, Fred moved into private practice in Chicago. He spent 15 years there litigating an extremely broad swath of cases, ultimately becoming the head of litigation. Contrary to the way many lawyers do their work, his client base is attracted to trying their cases as opposed to settling. Fred describes this type of case as “trench warfare” — and, since this time, has only taken on a greater size, complexity and breadth of litigation subcategories he handles in this sphere. Fred’s work now spans a breadth of commercial litigation, encompassing literally every type of non-injury legal case.
So, What Has Changed in the World of Litigation?
The historically professional “sport” of litigation, in Fred’s view, has become riddled over the last half-century by the “hostile, incapable, annoying, unprofessional, scummy undercoating” that now saturates the field. Litigators have had to quickly master new fields to win in the face of questionable ethics. Fred’s catchphrase? “Isolate, contain and destroy” the opponent. In his case, the adversary is most often a major law firm, not a solo practitioner.
What has driven all these changes? Fred has seen an explosion of “incompetent or barely competent” lawyers who will willingly bend or break rules out of a drive of client originations, clientele and other “bashing” within the profession. Unfortunate examples and side effects include aggressive rate-cutting, pleading, and ad hominem attacks. In his own words, the very notion of professionalism has “seeped into the sewer,” perhaps most notably over the last decade. Fred rarely sees real sanctions against lawyers who are violating court orders, standing orders, ethics or rules of the court — tragically, “it just happens.” This spiral further drives the trench warfare phenomenon, and now litigators are employed on the merit of their low prices… low quality notwithstanding.
Trends Beyond the Ethics
And a second major trend since the 1960’s: The number of specialties in litigation has positively erupted, largely via statutes in the last 50 years. According to Fred, this shift has created “unique challenges for a generalist,” where almost any high-stakes litigation requires a specialist to head off potentially disastrous blind spots. In fact, an entire category of law has sprung up in one U.S. state called “categories of law” designed to decide which category of law applies to the dispute!
Fred has observed and studied how a veritable flood of statutes, ordinances, and state and federal laws have complicated employment law significantly. He explained how a transactional lawyer especially must study major changes to “the fundamental building blocks of discrimination laws” from 1964 to present. These include the Fair Labor Standards Act, ADA, statutes for independent contractors, and more. Litigation arising from this major spread includes the state and federal Departments of Labor; the IRS; Family and Medical Leave Act; and state acts involving pregnancy and maternity leave statutes. The scope of employment retaliation, Fred noted, has expanded and been codified in state laws or ordinances.
What Does This Mean for Labor and Employment Law?
Fred observes how “forcible covenants favored in the old days” have “exploded” in state versions of employment termination and rights enforcement. We also see this trend in intellectual property rights, which may be at risk during employee termination. Fred also cited IT as a huge area for litigation — when an IT professional leaves, for instance, and debilitates their prior employer. He has published on this topic, which he attests is “inextricably linked” to intellectual property issues at the federal level, including copyright implications.
Finally, the field of litigation has seen a major increase in unions and in the amount of litigation that has been held in “labor land.” These cases affect non-unionized companies, and new entanglements in the “labor law rubric” arise when, for instance, a set of coworkers discuss aspects of their work they dislike on social media and employers issue ensuing demands for removal.
What to Expect in the Future
The age of COVID, in Fred’s view, “has altered the world, possibly forever, and will drip into traditional advocacy on multiple levels.” In the second half of our interview, which we will cover in our next blog post, we dove deep with Fred on the effects of COVID on litigation; including “the art of advocacy”; trial prep in the world of Zoom; courtroom histrionics and tricks; and forums, travel and convenience for litigators and witnesses. We focused on the effects of this recent worldwide crisis and digital shift on employment and labor law specifically and kept an eye toward the broader future of litigation.
You’ll see this next installment soon! Expert ENGINE is here to help you succeed in a quickly changing world, so tap into the Expert ENGINE panel for the expert you need to win your next big case.