By Josh Blandi.
Despite widespread concerns that the impact of COVID-19 would significantly curtail legal services demands, litigation volumes for most practice areas in federal courts remained relatively stable in 2020. While some noteworthy exceptions remain, the consensus is that that litigation practices - and the legal services industry writ large - is alive and well.
This article will review the year-over-year changes in case volumes from 2019 to 2020 for federal U.S. district courts. It will also highlight trends for countries in the European Union and specific spikes seen for particular practice areas. Finally, we will touch on how law firms and legal departments can use litigation data for strategic planning to stay ahead of the curve and the competition - even in another global crisis.
U.S. Litigation Trends
For most practice areas, litigation trends have remained relatively stable in the federal courts. Labor law and civil rights cases, in particular, have seen high volumes of filings. However, there have been noticeable dips in others.
Here is a data-driven breakdown.
Personal Injury Cases
One of the more interesting changes in litigation trends from 2019 to 2020 case volumes relates to the massive spike in personal injury cases filed in U.S. District Courts during 2020.
While there were close to 77,000 personal injury cases filed in federal court in 2019, there were over 282,000 cases filed in 2020, nearly a four-fold increase. However, this increase is almost entirely attributable to over 227,000 personal injury - product liability lawsuits brought against 3M Company.
Within the personal injury practice area, there were also two changes in litigation trends that could possibly be related to COVID: (1) a significant drop in airplane product liability litigation, likely due to a sharp decline in air travel during the height of the pandemic, and (2) a noticeable drop in medical/pharmaceutical product liability cases, which may have been caused by a decline in the number of patients in the US receiving care for non-COVID related issues and injuries in 2020.
Throughout 2019, labor litigation filings remained strong, totaling just shy of 16,000 filings in federal U.S. District Courts. In 2020, that number dropped only slightly to a little under 15,000 cases.
With the volatility in the US labor market during 2020, the relative stability in the number of labor related cases in federal courts on a month by month basis all the way from January 2019 to December 2020 is somewhat surprising.
Civil Rights Litigation
Along with a steady pace for labor litigation in the midst of the pandemic last year, there was also a relatively stable volume of civil rights litigation from 2019 to 2020. In 2019, there were just over 44,000 civil rights cases filed in U.S. district courts, compared to about 42,500 cases in 2020.
For the most part, all of the case types within the civil rights banner remained consistent from 2019 to 2020, even though there was a slight drop in disability discrimination cases and a modest decrease in employment discrimination cases. The data also shows a spike in voting discrimination cases filed in federal courts, which could be foreseeable given the volatility of the 2020 election cycle in the US.
Litigation for intellectual property (IP) lawyers also provided a steady stream of work despite the pandemic. However, there was a noticeable decrease in filings year over year with about 11,500 cases in 2019 and just over 10,000 cases in 2020.
Within the umbrella of IP litigation, we saw a slight uptick in patent case volumes with close to 500 additional patent cases filed last year compared to 2019. But what caused the overall drop of about 1,500 IP cases in 2020 was a significant reduction in copyright litigation, combined with a minor slowing in the number of trademark cases filed in federal court.
Antitrust & RICO Cases
In addition to the more standard practice areas of personal injury, labor, civil rights, and IP, we also want to share the data for two other niche practice areas: antitrust litigation and Racketeer Influenced & Corrupt Organizations Act cases, also commonly known as RICO cases.
For all of the bluster and talk of increased scrutiny of social media companies and other antitrust targets in 2020, there was only a minimal increase of less than 50 more antitrust cases last year. However, in the white collar defense world for RICO cases, there was a sharp reduction in the number of cases filed, with less than half of the caseloads in 2020 compared to 2019. With a new US Attorney General now in place, it will be interesting to see how litigation volumes in these niche areas unfold in 2021 and beyond.
Litigation Trends beyond the United States
With some notable exceptions, for many countries within the European Union (EU) there has not been a reported wide scale uptick in litigation during 2020. This is largely due to the fact that many courts at the beginning of the pandemic either closed or significantly scaled back their operations, notably, in Italy, Spain, and France.
This past January, the United Nations shared a report on 2020 climate change litigation volumes, noting that the number of climate change related lawsuits has doubled globally since 2017 across dozens of countries, including the EU. This will be a trend to continue to watch as 2021 unfolds with regulators in various jurisdictions pushing for sustainability legislation and increasingly active investor litigation in this space.
Besides the increase in climate change and sustainability related matters, another specific practice area seeing caseloads on the rise in the EU is insurance litigation. Due to business closures enacted across the EU, and specifically in countries like Germany, restaurants and bars were particularly hard hit during 2020.
Upon seeking to collect on their insurance policies, many of those same businesses found that their loss of business due to the pandemic was not covered by their policies and have taken their disputes into court. As noted by an executive partner at the international law firm CMS, insurance is going “absolutely nuts” and “insurance claims are going up everywhere.” In the US, interestingly enough, there was not a wild increase of insurance litigation in federal courts, even though there was a noticeable bump from 11,107 cases in 2019 to 12,233 cases in 2020.
As court data is more closely guarded in many countries in the EU, it is harder to provide more accurate reporting on 2020 case volumes outside of studies and reports published by the EU and well-funded research operations. And while the EU Justice Scoreboard is a great step in the right direction of providing a wealth of information on litigation volumes in member countries, there is no real avenue to access the underlying court data to verify the statistics presented. Moreover, the EU Justice Scoreboard’s published reports do not contain any data for the prior year’s case volumes, making it difficult to take real action on findings contained within the data.
Leveraging Litigation Data for Strategic Planning
Whether you’re 3M’s legal department facing the onslaught of 227,000 plus product liability cases, another Fortune 500 company with looming litigation risk on the horizon, or a Global 100 law firm with a large corporate litigation practice group, it’s critical to be prepared and proactive when you see trends that could impact your business operations and business development opportunities.
While knowing what’s happening throughout the entire litigation market may not be necessary for legal departments, knowing what’s happening with the litigation in your industry, your niche practice areas, and litigation involving your chief competitors can make the difference between being blindsided by fast-moving trends and budgeting properly for foreseeable spikes.
And for law firms with profits tied heavily to the success of their litigation practice groups, knowing the trends impacting your bottom line is critical for gaining more business when the going is good and also walking away unscathed when business begins to drastically dry up. Specifically, litigation trends can help law firms determine when to actively seek more litigation work from their top clients and to also proactively transition their business development efforts to seeking more advisory and transactional work during litigation downturns, or to focus on other clients altogether.
As the continued global fallout from COVID-19 keeps rolling through the US and EU courts, we will eagerly be watching this space for future developments to see how the legal industry and businesses react to unfolding litigation trends.
About the Author
Josh Blandi is the CEO and Co-Founder of UniCourt, a SaaS offering using machine learning to disrupt the way court records are organized, accessed, and used. UniCourt provides Legal Data as a Service (LDaaS) via our APIs to AmLaw 50 firms and Fortune 500 businesses for accessing normalized court data for business development and intelligence, analytics, machine learning models, process automation, background checks, investigations, and underwriting.