A brave new world: managing litigation and teams in the digital age

Luciano Castelli
LCA Studio Legale, Milan
luciano.castelli@lcalex.it

Marco Losito
LCA Studio Legale, Milan
marco.losito@lcalex.it

Elisa Rizzi
LCA Studio Legale, Milan
elisa.rizzi@lcalex.it

Litigation lawyers in the digital age

The increasing complexity of the legal landscape, particularly in the realm of IT litigation and assistance, necessitates that lawyers possess a robust understanding of IT culture and knowledge. As technology continues to evolve at a rapid pace, with new innovations and applications emerging regularly, legal professionals must adapt to the unique challenges and nuances presented by this dynamic field. The impact of such innovation on lawyers’ everyday life is significant, as – despite this being unimaginable until a few decades ago – they can now interact with clients, counterparties and colleagues by means of remote communication tools and, in general, do much of their work remotely.

Need for litigation lawyers to understand IT concepts and terminology

The IT industry has its own distinct culture – characterised by a fast-paced, innovative and often disruptive approach to problem-solving – along with its own practices and languages. For lawyers, grasping this culture is essential to provide comprehensive and effective assistance to clients, whether or not they operate within the IT industry. Indeed, the pervasive use of IT across all social and economic fields determines its influence on most of the legal issues lawyers are called to face today.

As a starting point, lawyers should build a solid understanding of IT language, concepts and the function of IT devices and software. Following this foundational knowledge, they must comprehend the legal implications that may arise from these technologies and relate them to established legal paradigms and concepts. Next, lawyers should be able to connect the various legal implications that technology involves, such as intellectual property, data privacy, cybersecurity and contract law. To do so, lawyers engaged in IT legal assistance – particularly in litigation – must possess a solid understanding of these technological intricacies to provide effective representation. This includes staying informed about current technological trends, understanding the legal frameworks governing technology use and being aware of the potential risks associated with emerging technologies. For example, a lawyer representing a tech company in a patent dispute, or in cases of software counterfeiting, must understand the underlying technology to effectively argue the case and navigate the complexities of patent law.

The hypothesis that the IT landscape is related to non-IT litigation, such as contractual disputes, is increasingly relevant in today's digital age. As technology becomes more integrated into business operations, the legal implications of IT-related issues extend beyond traditional IT litigation into various forms of contractual disputes. This relationship can be explored through several dimensions, including the impact of technology on contractual obligations, the role of legal technology in managing disputes and the intersection of data privacy and consumer protection laws.

In many instances, contracts across various sectors now include specific clauses related to technology, such as service-level agreements (SLAs) that define the quality and performance of IT services. Breaches of these obligations can lead to significant disputes. For example, in Italy, IT contract litigation often arises from claims related to the quality of IT services provided, where one party seeks compensation for damages due to a breach of contractual obligations. As businesses increasingly rely on technology for their operations, the potential for disputes related to these contractual relationships grows, making it essential for lawyers in non-IT litigation to understand the technical aspects of the contracts they are dealing with.

Legal technology plays a crucial role in the management and resolution of contractual disputes. Tools such as contract lifecycle management (CLM)[1] systems streamline the creation, review and management of contracts, reducing the likelihood of disputes arising from misunderstandings or errors. By automating routine tasks and utilising artificial intelligence for contract analysis, legal professionals can ensure that contracts are clear, compliant and reflective of the parties' intentions. This technological integration not only enhances efficiency but also provides a framework for resolving disputes more effectively when they do arise.

Furthermore, the growing importance of data privacy and consumer protection laws further illustrates the connection between the IT landscape and non-IT litigation. Disputes often emerge at the intersection of these areas, where technology plays a central role. For instance, breaches of data protection laws can lead to claims that overlap with consumer litigation, as seen in cases involving violations of transparency and consent principles. Legal professionals must navigate these complex interactions, understanding both the technological underpinnings and the legal ramifications to effectively advocate for their clients.

Use of IT in day-to-day legal practice and in legal proceedings

Communication is paramount. To achieve comprehensive legal assistance for clients, lawyers must also be able to communicate effectively about the implications of technology and the related legal aspects. Many clients in the IT sector come from diverse backgrounds; their perspectives on legal issues may differ significantly from traditional legal paradigms. A lawyer's ability to navigate these differences can enhance client relationships and improve case outcomes. Cultural competency allows lawyers to communicate effectively with clients, understand their needs and tailor legal strategies accordingly. Lawyers must also translate complex technical jargon into understandable terms for their clients.

Miscommunication can lead to misunderstandings, mistrust and ultimately detrimental outcomes for cases. For instance, a lawyer who fails to recognise that a client values direct communication may struggle to establish rapport, hindering the flow of crucial information. By being culturally competent, lawyers can foster an environment where clients feel comfortable sharing vital details about their cases, significantly affecting the litigation process.

The effects of the radical transformation the legal profession is undergoing are also related to the emergence of new means of communication that are significantly changing the way lawyers practice law. Among these new technologies are communication platforms such as Microsoft Teams, Zoom and Google Meet, the use of which is becoming increasingly common and is revolutionising the way lawyers, clients and colleagues interact.

Digitalisation has indeed introduced a new dimension to the practice of law. Litigation lawyers, traditionally tied to work done primarily in the office or in court, now have the possibility to do much of their work remotely. This evolution has been accelerated by the Covid-19 pandemic, which forced many law firms to adapt quickly to new modes of operation to ensure legal protection for their clients even during the lockdown.

Remote communication platforms offer many advantages. They enable litigation lawyers to maintain constant contact with their clients, regardless of physical distance, thus reducing waiting time and travel costs. They also facilitate meetings between colleagues, allowing for smoother and more timely collaboration – even between professionals working across cities or countries – ultimately encouraging more flexible ways of working.

These digital tools make it possible to immediately share documents, discuss legal strategies in real-time and quickly resolve urgent issues. In addition, the ability to create audio and video recordings of meetings ensures that communications are easily accessible in the future.

But the disruptive effects of digitalisation have not only changed the way lawyers interact with colleagues, counterparties and clients. Indeed, focusing on the litigation practice, nowadays distance communication platforms are increasingly used in court or alternative dispute resolution (ADR) proceedings, such as – when it comes to the Italian dispute resolution system – mediation and lawyer-assisted party negotiations.

To cite one recent example, the Italian legislator has introduced in the Code of Civil Procedure the possibility of conducting civil hearings by videoconference,[2] marking an important step toward the digitalisation of the judicial system. This innovation, initially provided for in emergency decrees and intended as a provisional measure during the Covid-19 pandemic, has permanently entered the Code. These provisions allow judges to order hearings to be held remotely by means of videoconference tools when circumstances allow it, that is, when no one other than lawyers, parties, the public prosecutor and the judge’s aides needs to participate, and with the consent of the parties.

Mitigating IT risks

The pervasive use of information technology in contemporary legal practice is not without its challenges. Data security is a primary concern, as litigation lawyers often deal with highly confidential information. Thus, litigators must ensure that the platforms they use comply with data protection standards and that their devices are adequately protected against cyber threats.

In addition, professional ethics require lawyers to maintain confidentiality under all circumstances. Consequently, the use of digital tools requires increased awareness and care in information management to avoid unintentional privacy breaches.

Overall, future litigation lawyers must continue to evolve alongside technology, developing new digital skills and a deep understanding of technological advancements to comprehend the associated legal implications and provide efficient solutions for their clients. Moreover, the integration of remote communication platforms into legal practice represents a significant step toward creating a more flexible legal profession that can adapt to the needs of modern clients. While challenges remain, the benefits of digitalisation are undeniable, paving the way for a more efficient and accessible working environment. However, it is crucial not to overlook the risks associated with data protection, cybersecurity and ethical considerations. As the legal landscape continues to change, lawyers must remain vigilant and proactive in addressing these challenges to ensure they can effectively serve their clients in an increasingly digital world.

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