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5 Trends to Watch: 2023 Litigation & Trials

  1. Backlog of Pending Cases in Courts Across the Nation – As district courts struggle to clear the civil case and trial backlogs caused or worsened by the pandemic, they also grapple with the continuing increase in the number of new cases year over year that has occurred over the past decade. To handle their overloaded dockets and work to clear the backlogs, courts are turning to magistrate judges to conduct motion hearings and trials unless parties involved object, even in some instances having court-appointed special masters hearing dispositive and pretrial motions and issuing reports and recommendations. Courts are also suggesting that magistrates be used for settlement and mediation attempts. If counsel and clients, however, want to secure trial times and dates for their cases, the best approach is to be proactive and jointly approach the courts with agreed-upon dates with all parties and sides and in that way, avoid being passive and waiting for calendars to open up or work amongst the many conflicting dates of counsel. 

  2. Remote Trials Wane but Remote Hearings Remain – While the return to in-person trials is increasing, many court hearings are still being held remotely particularly in MDL litigations where numerous counsel from around the country may attend if travel is not required. Expect the remote hearings trend to continue as they save time and money for all parties involved and many judges have expressed willingness to keep this option available going forward. Counsel should be mindful of which cases and arguments should be done in person to garner the most attention and focus from your judge. Judges are mostly happy to set hearings in person, and may only take a little pushing to do so. If you have a game-changer of an argument and want to utilize the most demonstratives, expression and passion, you may want to start by convincing the Court why it should be held in person and not remotely. Nothing is set in stone and while Courts are willing to help clients and counsel be efficient, they also respect and support the need for the right arguments to take place in person, too. 

  3. Ongoing and New MDLs Are Likely to Result in More Bellwether and Remand Trials – Even as the JPML reports a reduction in requests for new MDLs year over year, the total number of lawsuits pending in MDL litigations continues to rise and many MDL courts are looking to resume bellwether and remand trials that were delayed due to the pandemic. Plaintiffs’ attorneys’ efforts to continue filing new cases into existing MDLs, and to continue to ask the JPML create new mega-MDLs to replace several large concluding MDLs, will continue to keep the activity level in MDL litigation very high. Moreover, we anticipate continued filing of consumer fraud class action cases as in recent years, leading to more bellwether trials focusing on consumer fraud allegations and economic recovery damages, for which the bellwether selection and trial strategies employed by each side are likely to be different. Growth in case volume seems to be the continuing trend as well as fewer personal injury bellwether trials, particularly in MDLs where specific causation is challenging to establish, and a shift in focus by plaintiffs to more consumer fraud/class action trials. 

  4. Continuation of Health Care Related False Claims Act Cases – The False Claims Act continues to lead to significant filings and collections for the government, especially in the health care industry. The incentives to whistleblowers with payouts usually between 15-30% of collections and the large collections by the Government has ensured such cases will continue to provide a steady stream of FCA matters, as the Supreme Court weighs in on the Government’s ability to unilaterally dismiss such cases over the objection of relators who wish to pursue such matters after the Government has declined to intervene. The opioid epidemic has additionally led to significant collections in the recent past and will likely continue, while relators’ counsel continue to look for the next large payout.

  5. SEC Bringing More Enforcement Actions – Over the recent past the Securities and Exchange Commission has been more aggressive in pursuing enforcement actions. As the agency brings cases with a more assertive approach, their approach is more likely to be tested by defendants in trial. While the number of filed securities fraud matters have never been significant in any year, and will continue to be relatively low, the importance of testing the assertive approach by the SEC will become both more common and more significant. 

About the Authors

Greenberg Traurig, LLP’s Global Litigation Practice includes a team of more than 600 attorneys. The firm’s trial lawyers regularly appear in state and federal courts throughout the country, as well as in appellate courts and before international arbitration panels.

Greenberg Traurig, LLP’s Trial Practice is a unique trial boutique within a Big Law firm comprising approximately 80 highly experienced, first-chair trial lawyers working collaboratively to provide the full spectrum of strategic support – from matters’ beginning to their end.