With nearly two years of a highly unusual litigation environment in our rearview mirror, what can we expect in 2022?

A year ago, every question about what litigation in the future would look like had the same answer: “It depends on what happens with COVID.”

Without minimizing the global pandemic tragedy, in 2022, COVID, which remains an ever-present concern, will have a greatly diminished effect on litigation trends. Courts in North Carolina and around the country have been functioning in a COVID environment for a year and a half and have adapted; they can now nearly seamlessly transition between virtual and in-person hearings as circumstances allow. In addition, all the physical infrastructure for jury trials, from plastic dividers to socially distanced chairs, are in place, and expectations have been adjusted to expect absences of parties, attorneys, or jurors with little or no notice, due to infection, close contacts, or closed schools.

The takeaway is that less business will get done in court than in a pre-pandemic setting, but where there is predictability, companies will adapt.

Virtual Litigation is Here to Stay

2022 will see a continued move towards virtual hearings, mediations, and arbitrations as the legal system is generally comfortable with the “new normal.” Virtual litigation reduces costs to parties and reduces the risk of infection while allowing participants to multi-task when school cancellations or quarantine would otherwise delay proceedings. As even the most ardent traditionalists are forced to adapt to virtual litigation, and a younger generation knows only virtual litigation, expect the move to Zoom and Webex to continue.

Backlogs Are Still a Work in Progress

With a near systemwide litigation pause in 2020 and at least 18 months of reduced volume, it takes significantly longer to get a case to trial than it has in the past. Complicating things more is that courts are being forced to work through criminal cases first, limiting the space and staff dedicated to resolving civil cases. However, increased use of arbitration and bench trials, as well as more settlement, will reduce the civil backlog as businesses recognize these factors are unlikely to change, and act accordingly.

Politics are… Politics

Eviction moratoriums, stimulus checks, extended unemployment benefits, labor and supply shortages, vaccines, masks: the number of unique and unusual factors affecting almost every facet of business have created a petri dish where conflicts in virtually every area of law, and the ensuing ligation, cannot help but grow.

• As residential evictions begin again, people will be on the move, as will their money. The effects of the eviction moratorium on the rental housing market for both landlords and tenants will combine with skyrocketing residential property values to create friction that will lead to increased litigation in residential and commercial real estate sectors.
• The end of extended unemployment benefits and the waning effect of stimulus checks will work with labor shortages and increased wages to increase churn in the labor market, adding to an active employment litigation sector.
• Without state and federal level consensus, regulation and enforcement of masking and vaccination is a hodgepodge of federal, state, and local government action with the private sector adding additional measures. The litigation in this area will be vigorous and contentious but relatively short-lived, as by the time pundits are talking about 2023 litigation trends, a new topic will be filling radio and cable news airtime, and eventually the lower courts.

As businesses confront those issues, they will turn to attorneys for help. Enterprising lawyers have already been addressing this evolving environment in how they draft clauses and file lawsuits, while legislatures, as is their nature, are far behind, so there will be many novel and murky issues facing overwhelmed courts.

2022 promises to be a busy year, and for litigation, it will be anything but business as usual.

Gordon Wikle is an attorney at Venn Law Group with more than 14 years of experience serving as an assistant district attorney with the State of North Carolina. He focuses on commercial litigation and enjoys analyzing problems and finding creative solutions that are in the best interest of his clients. Navigating difficult situations and resolving business disputes are areas where he excels. Gordon earned his J.D. from Duke University School of Law and has his B.A. in Economics from Vanderbilt University.