The repercussions of the Online Safety Bill and the need to educate colleagues on their role were front of mind for in-house disputes lawyers at London International Disputes Week
What are the priorities of in-house disputes lawyers and what do they portend for private practice? These were two of the questions addressed during a conference session at London International Disputes Week on Tuesday.
The session – conducted under the Chatham House Rule – heard that in-house lawyers in multiple sectors, including financial services, are dealing with many more class actions. Russian sanctions will lead to ‘inevitable claims’.
Lawyers in the tech industry are braced for a surge in litigation when the Online Safety Bill comes into force. The bill, which is now making its way through the Lords, will place duties of care on user-to-user service providers such as Facebook and search providers such as Google.
On the challenges of being an in-house disputes lawyer, some are still having to educate colleagues on their role and ensure issues are brought to them at the right time. Others say they are ‘extremely plugged in’ to their business. ‘On any prickly issue that comes through the door of the GC or heads of business, they will often pick up the phone to the litigator and pick our brains,’ one litigation chief said.
How is the role of private practice perceived? Disputes lawyers want advice they can easily pass on to stakeholders, bearing in mind many of those will not be lawyers and they will not necessarily be based in the same jurisdiction.
Firms need to understand their clients: ‘Know who the regulators are, what their concerns are, understand what we need to deliver to internal people.’
Cost is not necessarily the first thing every disputes lawyer thinks about when instructing a law firm. ‘It’s about the value the firm brings and knowledge of our business, their ability to get to the heart of the issue quickly and what we can convey to our internal stakeholders.’
Firms are expected to put forward diverse teams, with lawyers from diverse backgrounds taking on lead roles. In-house teams recognise that when it comes to diversity, equity and inclusion, some jurisdictions will be different and local laws must be complied with. But, in the UK, ‘we feel we are able to push’.
Firms need to appreciate that in-house lawyers have internal budget processes they have to go through to justify spend. One head of legal received a bill on the morning of the conference that was double what they expected – without any warning that it was coming.
‘That’s just not good enough. Not that cost is the be-all and end-all. It’s just important that the lines of communication are open. Let us know it’s coming so we can have internal conversations at the right time.’
‘We’re not looking to punish you,’ said another. ‘We want to pay you fairly, but we need to be able to manage budgets.’
On a more positive note, technology has been a game-changer, with lawyers seeing the value of going digital in disclosure. One litigation team has begun using a voice-recording and transcription tool that will make it quicker and easier to search for the relevant data in eight hours’ worth of calls.
Technology could play a role in preparing indices for bundles or digesting historical cost information to help project future costs more reliably.
Which leads to the old question: could digital advances put in-house disputes lawyers out of a job? ‘I can see it has a place in terms of reviewing case law, delivering some kind of merits analysis and maybe cost benefits analysis. But unless our judges are replaced by AI chatbots, I don’t think it will ever replace experienced litigators.’
However, the human side of litigation should not be forgotten. ‘There is a place for aggression in litigation, but it is very often misplaced in correspondence,’ said one legal chief.
In-house lawyers expect firms to behave appropriately, and not to be rude or sarcastic about clients. One lawyer pointed out that many claims they deal with involve product users and consumers. ‘If I see a draft letter that had the wrong tone, I would ask for it to be rewritten. What would a judge think if they were reading this correspondence?’
Finally, what one thing do in-house disputes lawyers know now they wished they knew before? The importance of brevity.
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