Spot the Litigation Trends

Kevin Stehr
Legal Times
10-07-2004

In today's fiercely competitive legal environment, lawyers must be adept at winning and keeping business.

In other words, they must market themselves. Clients increasingly are shopping around: scrutinizing what they get for their legal outlays and what other law firms offer, including specialty practices and services.

Lawyers are learning, too, that they can increase their use of electronic court records to discover all sorts of business information. Unlike their hard-copy equivalents, electronic records can be researched, cross-examined, and summarized in graphic layouts.

In minutes, lawyers can view a company's recent litigation history, what firms represent the company, and even what individual lawyers work on specific cases and have argued in front of particular judges.

With this information, firms can match companies' needs and specialities, identifying client-development activities. Firms also can identify their share of total available business from a client.

Services even exist that can send breaking legal alerts, notifying firms of newly filed cases -- often before the party is served -- and new developments in existing cases.

One law firm, Connelly Sheehan Moran of Chicago, is turning legal intelligence into a business asset, according to Rachel Cowen, a partner in the 15-attorney employment litigation firm.

In landing one recent client, the firm used a search service as a form of marketing. The firm learned that the client used multiple law firms throughout the country. It didn't follow one consolidated approach.

"We said to the CEO, 'Here is what your law department is doing, what the human resources department is doing, how many cases you have, and how many law firms you use. And here are the results you are achieving,'" says Cowen. "We put together a geographic map of all the prospect's litigation and overlaid it with a map of all the places where we did litigation. They matched up.

"The prospect had 15 employment cases opening a year," she says. "Even though the CEO didn't think his biggest need was employment law, we could show that 70 percent of the cases they were involved in were employment cases, and they had up to 10 law firms working those cases."

Cowen's firm argued that it could reduce the resources the company needed to manage all those cases. In the end, the company switched most of its cases to Connelly Sheehan Moran.

Lawyers can also research court records by the specific nature of suits to detect growth patterns nationally and to identify the companies affected. Firms even can monitor case types on the decline to flag emerging risks.

For example, a search of federal civil litigation trends over the past five years reveals that the practice areas with the largest growth are products liability, securities, intellectual property, antitrust, and employment.

Products liability cases have surged since 2001 to an anticipated 25,700 cases in 2004 and now make up nearly 10 percent of all federal civil filings. In particular, the estimated 24,100 cases dealing with personal injuries continue to grow and now account for 94 percent of all products liability cases.

In addition, the pharmaceutical industry faces numerous claims, with those against Wyeth, Glaxo, Bayer, and Bristol Meyers providing a glimpse into a projected growth.

Given this trend, firms may want to invest further in their products liability practice, especially as multinational products liability is staged for growth. The International Association of Defense Counsel says an increasing awareness of consumer rights and a growth in available information will lead Canada and the European Union to increase products litigation.

Patent litigation is also on the rise. Research reported in The National Law Journal in August finds that litigation between generic drug makers and patent holders has increased dramatically in recent years. From 1984 to 1994, 30 suits were decided. From 2002 to the present, 127 cases were filed and 36 decided. As a result, several firms have boosted their patent practices to meet the demands of the pharmaceutical industry.

Court records also reveal patterns in where cases are filed. Firms specializing in securities litigation should note that while settlements of securities cases have grown in volume and value, state enforcement has begun to outpace federal claims.

No lawyer today should approach a case, a client, or a prospect without understanding the business of law. Lawyers must grasp a complete picture of a company's legal threats and needs.

They must know what other firms have a hand in legal counsel. And every lawyer must possess a keen sense of how litigation trends are developing -- securing a head start on business opportunities. Electronic court records present a rich source of intelligence for lawyers who need a winning line to land new business.

Kevin Stehr is vice president for strategic market planning at LexisNexis.