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Litigation Is on the Rise

Law gavel on white.

Construction attorneys may think there is too much litigation in the industry, but according to Norton Rose Fulbright’s 2013 Litigation Trends Survey Report, the health care, energy and technology industries reported more litigation compared to the previous year.More than 400 senior corporate counsel shared their experiences relative to the changing face of U.S. litigation. Five percent of respondents were general counsel of construction/engineering companies. This year’s highlights include:

  • U.S. companies are increasingly concerned about regulatory disputes. Regulatory investigations increased from 9 percent in 2012 to 19 percent in 2013, and were most pronounced in technology and health care. Forty-four percent of the construction industry respondents had regulatory proceedings against them.
  • The number of U.S. companies facing regulatory proceedings increased for the third consecutive year.
  • Labor and employment matters constituted the most numerous types of litigation pending against U.S. companies, especially in the technology/communications industry. More than one-third of all respondents faced at least one lawsuit with more than $20 million at issue in 2013.
  • Litigation spending continues to rise, especially among large companies. The percentage of companies spending more than $1 million has risen sharply to 71 percent, versus 53 percent in the two previous surveys.
  • Big data is a legal headache; more in-house counsel encounter issues with privacy/data protection in disputes or investigations.
  • Health care had the most litigation matters compared with other industries, with 55 percent indicating more than 20 lawsuits versus 30 percent for the overall sample.
  • Health care also was most likely to have one or more arbitrations pending against them (60 percent versus 44 percent overall). Construction engineering had the second most pending arbitrations, at 53 percent.
  • Construction/engineering companies are the most likely to report adding firms to their outside counsel roster (42 percent).
  • Four out of 10 companies had to preserve or collect date from an employee’s personal mobile device for litigation or an investigation. One in five companies preserved or collected date from an employee’s personal social media account in connection with a dispute or an investigation.

Norton Rose Fulbright is offering a free webinar on litigation trends on June 5. Experienced Norton Rose Fulbright litigators will discuss the Tenth Annual Litigation Trends Survey findings, addressing:

  • litigation costs, including staffing and outside counsel spend;
  • trends in litigation volume;
  • counsel responses to regulatory challenges; and
  • privacy and data protection issues.
3 Replies
  1. Hi Marla, excellent article! I’m sorry that I missed the webinar, but I was wondering if you discussed anything related to the percentage of a construction project that ends up being spent on litigation?
    A factoid that is at least easy to remember (whether correct or not) is that every 2nd project ends in litigation. If we could quantify that cost on average per project what might that be?
    Interested to hear your view.
    Jeremy Foster

      1. Thanks Marla,

        I appreciate the link! It was an interesting read.

        I’ll keep looking for something like this. We’re finding a major driver for our system adoption is in short term and long term risk management. The short term being about delivering to cost / quality / budget. The longer term being related to litigation.

        As we’ve come across cases where clients have avoided expensive litigation we’re trying to make a general case for this as most construction companies don’t like to have their dirty laundry hung out, even if they’re in the right.

        Thanks again for the return.

        Best, Jeremy Foster

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