Blog Post

Planning your Pivot: Why the Approach to Litigation Needs to Change

June 12, 2020

The pandemic has rocked the legal industry on a global scale. The shifted economic and social landscape has disrupted — or even shut down — many legal offices and departments. Now that businesses are opening up and employees are returning to work, the industry is facing a new wave of COVID-19 related litigation.

Employee allegations related to the virus, from workplace health violations and remote compliance issues, are threatening employers on a growing scale. Disputes relating to how organizations reacted during the crisis will soon be brought in front of courts and arbitrators, threatening businesses’ assets, finances, and reputation.

Thus, organizations are preparing now to minimize litigation risk, which requires sifting through volumes of contractual rights and obligations. Unfortunately, not all businesses have in-house legal resources to handle these laborious but high-stakes tasks. This means that the legal industry must adapt and transform to meet the growing demand, fast.

Before we dive into the solutions for mitigating risk, let’s take a look at the current trends of COVID-19-related cases against employers.

Recent Trends in COVID-19 Litigation Cases

There’s already been a notable trend in the types of COVID-19 litigation cases appearing in courtrooms. For example, the influx of telecommuting has vastly increased the number of security-related litigation cases, as a large fraction of non-essential workers have been working from home for the first time without the right technology to support privacy.

Thus, compliance and privacy issues are likely to show up in many of the litigation cases going forward, due to:

  • Insufficient security in at-home networks, resulting in compromising attorney-client privilege, exposing confidential company information, and threatening trade-secret protection.
  • A lack of e-signature protocol and an inability to authenticate “soft signatures” if challenged, resulting in courtroom evidentiary issues.
  • Security issues in stakeholder meetings and difficulty in authenticating recordings.

Outside of telecommuting issues resulting in compliance challenges, other trends in COVID-19 litigation cases include the following:

  • Lack of proper disclosure and documentation around financial and business impacts on stakeholders and investors.
  • Liability of collecting fees for products or services without being able to provide the product or service and refusing a timely refund.
  • Unfair lender coverage under the Paycheck Protection Program (PPP) under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

As organizations start putting the pieces back together, their legal departments will be at the vanguard of trying to figure out strategies to protect them against these cases and more. However, the effect of the COVID-19 game changer does not end with organizations successfully defending themselves against litigation (although this is a necessary step). The crisis continues to show the need for organizations to govern their information and unlock the true value of their data, as the world catapults into a true information age.

How Legal Teams Can Keep Up with Litigation Cases

In a single twist and turn, the world of the three “A’s” (Automation, Analytics, and Artificial Intelligence) has transformed from an aspirational goal to a survival imperative for legal industry players. Now, legal teams must position themselves to meet the new needs and demands of their clients in a post-COVID-19 world.

Legal departments will have to conduct litigation in a more strategic, efficient, and value-orientated manner. To support this strategy, teams must make use of smart technologies and partner with organizations that can provide and unlock advanced technologies. They will also have to more strategically and rapidly move along the cost-value spectrum within organizations by automating their negotiating and contracting practices.

Some of the legal technologies that will support mitigation against litigation risks include the following:

  • Contract management systems — These systems enable legal professionals to organize and manage their contract portfolio, providing the foundation necessary to begin assessing your portfolio for risk.
  • Smart search functionality coupled with natural language processing — In order to identify contracts with high-risk clauses, you’ll need the ability to search within your contract portfolio not just by keywords, but also by context and meaning.
  • Artificial intelligence — Leverage artificial intelligence to automatically alert your organization to upcoming deadlines and renewal dates, as failing to meet a time-sensitive obligation is a significant risk-exposure event.

Leveraging technology like this will allow lawyers to focus on complex, higher-value work, reduce the time required to complete laborious tasks, and assist in decision making to improve outcomes. Organizations that are alive to the changes around them and introduce smart technologies and partnerships into their legal departments will be in a commanding position.

If your organization is ready to partner with a team that has embraced a changing world and understand how to deploy the “three A’s” contact us now to find out how we can help.