First the bad news, then the good

When the litigation department is needed, it is usually not good news
First the bad news, then the good

When the litigation department is needed, it is usually not good news. Litigators are hired to resolve disputes, and disputes are rarely welcome.

In many ways, the pandemic has not changed that, and it has brought with it a whole new list of problems that will require litigators to resolve.

In difficult financial times, “the incidence of fraud seems to increase because people will sometimes turn to desperate measures to address the financial stress,” says Munaf Mohamed, of Bennett Jones LLP (Vigilance urged to avoid fraud).

Companies also need to monitor the risk of corruption where government dollars are flying out the door to deal with COVID-19. François Fontaine of Norton Rose Fulbright LLP says that, because governments are in a hurry to execute contracts and keep the economy afloat, the spending has far fewer controls.

“It’s opening the door for people to get contracts through the back door. It’s certainly an occasion for potential corruption,” says Fontaine.

Despite these warnings, though, litigators are seeing an upside to the pandemic with courts and arbitrators going virtual.

A big takeaway from the pandemic for litigators and arbitrators is that, with the proper gear, “virtual hearings can work,” says Marc-André Boutin of Davies Ward Phillips & Vineberg LLP (Pandemic accelerates ‘explosion in arbitration’).

The old notion that a hearing or examination needs to be in person to be fully effective is gone, Boutin says. At his own firm, high-tech equipment was set up when it was becoming clear that COVID-19 was going to last awhile.

While court delays have made arbitration even more appealing and arbitrators are ahead of the courts in terms of technology and innovation, the courts are catching up.

“The courts have implemented creative measures, moving to electronic filing, virtual hearings,” says Iris Antonios at Blake Cassels & Graydon LLP.

“Ten years from now, looking back, you’ll say the pandemic, like most major events, resulted in a complete overhaul of how people have their legal matters adjudicated,” says Junior Sirivar at McCarthy Tétrault LLP.

So, the next time you call up the litigation department, you may be delivering bad news. But look forward to hearing a good news story as well from the litigators on the call.

Tim Wilbur, Editor-in-Chief