It is hardly necessary to remark on how consequential the past year has been – and to do so would be to distract from the promise of the year to come. As we move into 2023, we hope for a continuation of progress made towards a greener and more just future even amid geopolitical turmoil and economic shock, and look forward to discovering and sharing all the major legal stories of the months ahead. Our front-cover features for January are led by Mark Brealey KC, a barrister with Monckton Chambers and a specialist litigator in competition law. Calling upon an extensive career of success in the sector, he shares an exclusive look at some of his past cases and the current trajectory of competition law in the UK and internationally. His story and insights can be found in full beginning on page 12. Bidding farewell to 2022 in style, we look back on the biggest legal stories of the past year in a roundup special feature on page 28. We also hear from Colin Russ on the ways in which the mediation space has developed post-COVID, and from Stefano Balbinot of D.G.P.A. & Co. on the role he and his team played during Palladio Holding’s investment in Wisycom. You can find these incisive interviews on page 20 and page 62 respectively. Back in the present, we have packed this edition with the usual array of news, transaction reports and lawyer moves to get you up to date on all of the latest happenings in the legal sphere. It is our pleasure to have been able to report on activity within the sector all throughout 2022, and we hope to do the same through 2023 and many more years to come. We hope that you enjoy this start-of-year edition! LAWYER MONTHLY©2022 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: www.lawyer-monthly.com. The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Approx. 302,000 net digital distribution. Oliver Sullivan Editor Lawyer Monthly Welcome to Lawyer Monthly Magazine JANUARY 2023 EDITION @lawyermonthly @LawyerMonthly @lawyermonthly company/lawyer-monthly Universal Media Limited, PO Box 17858, Tamworth, B77 9QG, United Kingdom 0044 (0) 1543 255 537 Production Team: Emma Tansey, Luke Ostle, Nathan Athersmith production@lawyer-monthly.com Sales Enquires: Jacob Mallinder Jacob.mallinder@universalmedia365.com
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6 Monthly Round-Up 8 Lawyer Moves FEATURE OF THE MONTH 12 Mark Brealey KC Delivering Excellence in Competition Law MY LEGAL LIFE 20 Colin Russ The Key to Effective Post-COVID Mediation SPECIAL FEATURES 28 The Biggest Legal Stories of 2022 Oliver Sullivan, Lawyer Monthly 32 How Law Firms Can Retain Talent in a Recession Bishu Solomon Girma, Access Legal 36 What Does Elon Musk’s Twitter Ownership Mean for Copyright and Creators? Glyn Moody, Author and Technology Writer 40 Why Legal Claims Against Insurance Companies Are Surging Bruce Hepburn, Mactavish EXPERT INSIGHT 46 Tackling the Challenges of Family Law Andrea B Friedman, Friedman & Friedman PLLC THOUGHT LEADER 50 Closing Real Estate Deals in Florida Jacqueline A Salcines, Law Offices of Jacqueline A Salcines EXPERT WITNESS 56 Life Expectancy Calculation: An Educated Guess or a Scientific Opinion? Dr François Sestier, Medicolegal Expert TRANSACTIONS 61 What’s Happening in the World of M&As and IPOs? Contents 20 50
Monthly Round-Up JANUARY 2023 Trump Organisation Found Guilty of Tax Fraud Two businesses belonging to former president Donald Trump's real estate and licensing company have been found guilty of running a 13-year tax fraud scheme. all announced strike action to take place over the winter. “My priority is making sure that I keep people safe, and that I minimise the disruption on their lives, and I will do what is required to do that,” Sunak told the BBC regarding the possibility of banning strikes among emergency services. Richard Arthur, head of trade union law at Thompsons Solicitors, criticised the statement. “When Rishi Sunak says he’ll ‘do what he needs to do’, he is talking as if he can act without regard to the UK’s international legal obligations,” he said. “The right to strike is an internationally-recognised, fundamental human right, and needs to be given the respect it deserves. How come he gets to decide what is reasonable in the face of all of these international obligations which need to be complied with?” president, with the Supreme Court having recently ordered that his tax returns be handed over to a congressional committee. New York attorney general Letitia James, whose office assisted the district attorney’s case, also lauded the result. “This verdict sends a clear message that no one, and no organisation, is above our laws,” she said. The company was accused of illegally reducing the tax it paid on executive paid by awarding executives ‘off-the-books’ benefits such as boats and luxury cars in what prosecutors described as a multi-decade scheme. A New York jury found the Trump Organissation guilty of all 17 charges on 6 December. “The foremr president’s companies now stand convicted of crimes,” Manhattan district attorney Alvin Bragg said in a statement to the media after the verdict was delivered. “That is consequential. It underscores that in Manhattan we have a standard of justice for all.” The conviction marks a victory for Manhattan prosecutors in the only extant criminal case against the Trump Organisation and marks the latest in a string of recent defeats for the former Downing Street has confirmed that the current parliamentary session will be extended until autumn 2023 to allow for greater time to pass a large crop of laws. Official portrait of Rishi Sunak by Chris McAndrew | WikiCommons Attribution 3.0 Unported (CC BY 3.0) | creativecommons.org/licenses/by/3.0/deed.en The laws in question include a number that began their passage through Parliament under Prime Minister Rishi Sunak’s predecessor Boris Johnson, including the Online Safety Bill, as well as “new tough laws” to prevent strike disruption as revealed by Sunak last week. Announced earlier in December, the strike law plans drew an immediate backlash from opposition leaders. The announcement comes as nurses, paramedics, rail staff and Border Force agents have Rishi Sunak Extends Time to Pass Anti-Strike Law 6 LAWYERMONTHLY JANUARY 2023
Tech Adoption Named Top Non-Legal Skill for In-House Counsel Danske Bank Pays $2 Billion Penalty for Defrauding US Banks The State of Corporate Litigation Today, published by the Association of Corporate Counsel in collaboration with EverLaw, noted that 47% of respondents believe that technology adoption will be the most important skill needed by the next generation of in-house legal professionals. Danske Bank, Denmark’s largest bank, has pleaded guilty to defrauding US banks over a major money-laundering scandal in Estonia, the Financial Times has reported. billion penalty is the largest forfeiture imposed by the DoJ on a financial institution compared to its market capitalisation. “We offer our unreservedapology and take full responsibility for the unacceptable failures and misconduct of the past, which have no place at Danske Bank today,” said Danske Bank chair Martin Blessing. and more than $100,000 per legal matter. 46% reported that the average length of a typical litigation matter is increasing, and that the most common strategy for containing litigation costs (used by 59%) is moving more work in-house. While 56% reported that they expect their department’s technology needs to increase in a year, it was found that a firm’s use of innovative technology is the least common criterion when it comes to considering outside counsel. The most common factor was expertise and industry knowledge. The full report can be read on the EverLaw website. https://www.everlaw.com/ white-papers/corporatelitigation-survey/ potentially criminal behaviour, it continued to lie to US banks about the Estonian branch’s a n t i - mo n e y - l a u n d e r i n g measures, the US Department of Justice (DoJ) said. The bank agreed to pay $1.2 billion in forfeitures to the US, in addition to $672 million to Danish authorities and a civil penalty of around $178 million to the US Securites and Exchange Commission. The $2 litigation, technology needs and selection criteria for outside counsel. Among other findings, the results of the survey showed that nearly half of respondents’ legal departments reported spending more than $400 per hour on outside counsel In court filings, the bank admitted to defrauding US lenders over the anti-moneylaundering controls used by Danske Bank Estonia. This allowed “high-risk customers”, including many from Russia, to access the US financial system. While Danske Bank had become aware by at least February 2014 that some of its customers were involved in The report, which was issued at the ACC 2022 Annual Meeting, showed the results of a survey of more than 200 inhouse counsel and legal operations professionals. Respondents were surveyed on their department’s top litigation costs, approach to MONTHLYROUND-UP 7
Lawyer Moves RECENTAPPOINTMENTS FROMACROSS THEGLOBE WilmerHale has appointed Richard Burger as a partner in the firm’s UK white collar defence and investigations practice. Burger will begin in his new role from January 2023. Burger joins from another international law firm where he was co-head of the Corporate Investigations practice. As a partner in WilmerHale’s London office, he will advise both corporates and senior executives in their defence of regulatory investigations/prosecutions, as well as on governance, close supervisory enquiries, and non-financial misconduct across multiple jurisdictions. Burger is a former enforcement lawyer and prosecutor with the FSA, the predecessor to the Financial Conduct Authority (FCA), and boasts over 25 years' experience of representing regulated firms, corporates and individuals in UK and international regulatory enforcement, in addition to criminal and internal corporate investigations. A prominent practitioner in his field, Burger sits as Chair of the Disciplinary Panel for the Chartered Institute for Securities and Investment and has successfully defended clients under investigation by the FCA, Serious Fraud Office (SFO), Prudential Regulation Authority (PRA), HM Revenue and Customs (HMRC), National Crime Agency (NCA) and US Department of Justice (DoJ), as well as other regulatory agencies. Burger expressed excitement at his appointment. “WilmerHale’s reputation for defending corporations and individuals in the most high-profile and complex investigations is second to none,” he said. “I look forward to contributing to the practice’s continued development as we help clients mitigate and navigate regulatory and white collar enforcement challenges.” High-ranking US law firm Paul Hastings LLP announced the appointment of prolific finance lawyer Morgan Bale to its global finance practice as a partner in New York. Bale frequently represents top-tier investment banks, other financial institutions and corporate borrowers in acquisition finance and other event-driven lending transactions. He advises on investment-grade, leveraged cash flow and assetbased syndicated credit facilities, as well as loan restructurings, debtor-inpossession financings, and exit financings. Bale’s work has consistently seen him ranked by Chambers Global, Chambers USA, Legal 500 US and IFLR1000. He is also well-known for his deep market knowledge and as a trusted advisor and go-to attorney for high-profile investment-grade financings. Paul Hastings Chair Frank Lopez lauded Bale’s arrival. “Morgan is an elite finance lawyer with a superb reputation,” he said in a statement. “He represents a crosssection of leading banks and corporates in the highest profile, most complex finance transactions by some of the most prestigious companies in the world.”+ Bale joins from Weil, Gotshal & Manges LLP after a tenure of more than 24 years. His regular high-profile clients include Citi, Goldman Sachs, JPMorgan, Morgan Stanley and other major investment banks, often advising them on financings for high-profile US domestic and cross-border transactions. Linklaters has announced the appointment of Françoise Maigrot as Managing Partner of the firm’s Paris office. Maigrot will serve a four-year term beginning from 1 January 2023. Maigrot previously joined Linklaters Paris as an intern before becoming a partner in 1999 and heading the firm’s Real Estate practice. A recognised figure in real estate law, Françoise has enabled the development of a leading practice within Linklaters that supports both French and international clients, with a particular focus on investment funds, banks and end users, and which requires the establishment of complex financial, legal and tax arrangements. Maigrot has been a member of Linklaters’ Partnership Board since 2020. The Board acts as the firm's governance body, which oversees its strategic operations globally and alignment with the firm's values. She also regularly advises on major transactions in both the French and international markets. In her new role, she will succeed Bertrand Andriani, partner who leads the firm’s Financing, Energy and Infrastructure team in Paris, as well as the Francophone Africa practice. WilmerHale Adds White Collar Defence Partner in London Paul Hastings Adds Prominent New York Finance Lawyer to Global Team Linklaters’ Paris Office Appoints New Managing Partner London, United Kingdom WilmerHale Paris, France Linklaters New York, USA Paul Hastings 8 LAWYERMONTHLY JANUARY 2023
Global law firm DLA Piper announced its appointment of Gavin Woods as a partner in its Litigation and Regulatory practice in Ireland. Woods will begin in his role from January 2023. Woods joins from Arthur Cox, where he served as partner since 2011. Specialising in litigation, dispute resolution and investigations, Woods advises on a broad range of commercial disputes in the technology and financial services sectors. He is also a recognised authority on intellectual property, data, technology and content-related issues including defamation and reputational matters. In addition to bringing significant experience in representing clients before the Irish Courts, including the Commercial Court, Woods has played a significant role in promoting Ireland as a jurisdiction for the resolution of international commercial disputes. In his role as a committee member and former president of Arbitration Ireland (2017-2018), Woods represents the association in its engagement with the international arbitration community and international arbitral institutions. He is also one of Ireland’s representatives to the International Chamber of Commerce’s Commission on Arbitration and ADR. “Gavin’s extensive knowledge of complex litigation, dispute resolution and investigations will be brought to bear for DLA Piper clients, and I would like to welcome him to the team,” said David Carthy, Country Managing Partner for DLA Piper in Ireland. “This continues to be an exciting time for the firm in Ireland as we continue to build our team to meet the growing needs of the business and we know that the appointment of Gavin will add significant value to our clients.” Global law firm Clyde & Co has announced the appointment of Tim Pipe as a partner in its Energy, Marine and Natural Resources (EMNR) Group based in London. Pipe, who joins the firm from Dentons, is the latest appointment in Clyde & Co’s Global EMNR group, following the hire of partners Ton van den Bosch in Singapore and Robert Kritzman in Miami. These two partners received their appointments in November and May respectively. Pipe’s practice focuses on advising lenders, borrowers, international financial institutions and trading companies in relation to financings in the energy sector, with particular emphasis on upstream oil and gas businesses and in emerging markets, especially sub-Saharan Africa. Pipe has worked on a broad variety of financings, including reserve-based lending facilities, structured prepayment facilities and pre-export finance facilities, in addition to more traditional corporate lending transactions. “Clyde & Co's strategy for this area is very much aligned with my own practice,” Pipe said in a statement on his appointment. “It’s an exciting time for this area, with commodity traders providing new financing solutions for oil and gas companies and the higher oil price unblocking previously moribund projects.” DLA Piper Boosts Irish Litigation and Regulatory Practice Clyde & Co Bolsters Energy, Marine and Natural Resources Practice with London Partner Hire London, United Kingdom Clyde & Co Dublin, Ireland DLA Piper LAWYERMOVES 9
This month’s highlight feature comes from Monckton Chambers’ Mark Brealey KC, a top-rated barrister with a focus on competition law. His area of specialisation is one that we have not often featured in our pages during 2022, but Mark brings us up to speed on the events that have shaped the sector in the UK and internationally since the turn of the decade, while also sharing his own experiences on some of the highest-profile competition litigations of the past decade. In its complexity and importance to the modern world, competition law is one of the most fascinating areas of the legal landscape. We hope that all of our readers enjoy this sector insight from one of the UK’s most talented legal practitioners. FEATURE OF THE MONTH
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Delivering Excellence in Competition Law Mark Brealey Navigating the intricacies of competition law has always been a challenging task, and one that has only grown more complex in the UK and internationally since the completion of Brexit. With new authority over infringement decisions now granted to the Competition and Markets Authority (CMA), specialist knowledge is required to properly litigate competition law. This month we have the pleasure of hearing from Mark Brealey KC, an expert in the field of competition law who has represented the likes of Pfizer and Ryder in numerous consequential cases. In this exclusive interview, he speaks in depth on his journey into law and offers unique insights on how the field of competition law continues to develop today. Feature of theMonth FEATUREOF THEMONTH 13
What was it that attracted you to competition law? Competition law is fascinating and litigating competition law is more so. Competition law is never boring. It throws up interesting points of law whilst being grounded in the real world. Businesses adopt restrictive practices on a daily basis. Some are legitimate, some are not. Some are good for the consumer, some are not. The aim of competition law is to identify those which are not. For example, a non-compete obligation in a vertical agreement may have procompetitive effects but a non-compete obligation between competitors is likely to be objectionable. It then becomes critical to determine whether the two businesses are actual or potential competitors. Take another example: it is the lifeblood of competition that businesses undercut their competitors to exclude them from the market. Yet if a company is dominant, the same conduct may become objectionable. The definition of the relevant market – how wide or how narrow – becomes a critical factor. The uncertainty of litigation is then added to the mix. One must try to predict the outcome of competition law disputes, but one can often feel like Pythia at Delphi (and, unfortunately, one can sometimes feel like Cassandra of Troy – to utter true prophecies but never be believed)! The final ingredient is the advocacy, which is obviously about persuasion and how best to put a case. But it involves knowing what to say as well as knowing what not to say! By the same token, why did you opt to become a barrister? It was a television programme that inspired me to be a barrister. In the 1970s, ITV (Granada) showed a programme called ‘Crown Court’. It ran in the afternoons and each programme comprised three episodes of 25 minutes; the first episode started with the prosecution and the next episode with the defence. The players were actors, but the jury was picked from the public and would deliver their verdict in the last episode. It was compelling stuff. Anyone who has watched it will remember the foreboding introductory music (which as I found out many years later was the Sinfonietta 4th movement by Janáček). It was that programme that got me hooked into the legal system. I always wanted to be a barrister after that. Please tell us about the areas that your practice covers. While at university, I studied European law. This was a move away from a rigid statutory interpretation of an Act of Parliament and away from a deep forensic analysis of a ratio decidendi. It was a game changer to have fundamental principles to consider, such as the principles of equal treatment and effective protection of individual rights. It was this principle of effective protection that led me to realise that Mr Crehan, a publican, should be entitled to claim damages for loss suffered by being tied to purchasing beer from his brewery landlord. The reaction of the High Court was to bar his claim because he was party to the unlawful tie. But he was signing on the landlord’s standard terms and conditions and was not responsible for the alleged foreclosure of the market. The CJEU ruled that the principle of ex turpi causa should not bar his claim because that would infringe the principle of effective protection (Case C-453/99 Courage v Crehan). This judgment was the catalyst for the wave of private litigation that subsequently followed. I have always practised competition law, but in the early years I was a common law European Union lawyer. EU law spanned nearly every subject, including agriculture, employment, transport, customs and restrictive practices. As lawyers gradually got to grips with EU law, my practice narrowed until it was focused exclusively on competition law. This has remained so because of the introduction of the Competition Act 1998, Brexit, and the grant of greater powers to the CMA. What types of cases do you handle? I have been lucky enough to have appeared in several seminal cases involving competition law. I have had several trips to the Supreme Court on competition issues. In Sainsbury’s Supermarkets v Visa and Mastercard [2020] UKSC 24 I acted for Sainsbury’s, who successfully argued that the interchange fees payable to the payment card companies restricted competition. The judgment also contained important statements on the pass-on defence (we had successfully argued in the Mastercard trial that there was zero pass-on). In Deutsche Bahn v Morgan Crucible [2014] UKSC 24, which concerned the graphite cartel, we successfully argued that the claim for damages was timebarred. Similarly, in BCL Old v BASF [2012] UKSC 45, which concerned the vitamins cartel, we successfully argued that the claim for damages be dismissed. In CMA v Flynn Pharma [2022] UKSC 14 we successfully argued that the CMA should be liable to adverse costs orders (the CMA had argued that, as a public Competition law is never boring. It throws up interesting points of law whilst being grounded in the real world. 14 LAWYERMONTHLY JANUARY 2023
authority, it was effectively exempt). I am also privileged to have appeared in several Court of Appeal cases involving important points of competition law. For example, recently in CMA v Pfizer [2020] I acted for Pfizer in its appeal against the CMA’s decision that the price of a drug was unfair. We successfully argued that the CMA had not applied the correct test for an excessively abusive price. The CMA had wrongly focused on a cost-plus model and had had insufficient regard to the prices of comparator products. The judgment contains important statements of principle concerning the CJEU’s judgment in United Brands and what considerations are relevant in determining an excessive price. In AB Volvo v Ryder Ltd [2020] EWCA Civ 1475 I acted for Ryder, which was suing various truck manufacturers for loss suffered because of the trucks cartel. The Competition law has been litigated in the UK now for some time. However, the last few years have seen some fundamental changes in the way it is litigated. FEATUREOF THEMONTH 15
to ensure a fair hearing than normally associated with civil litigation. If the hearing is a private dispute involving a claim for damages, we must understand complex regression models to determine the extent of any overcharge and pass-on. Forensic accounting evidence will often be adduced to determine any loss of profit caused by any pass-on (volume effects) and, lastly, the amount of any compound interest which, given the secretive nature and duration of cartels, can often double the size of the main claim. All of this is on top of the esoteric points of competition law that gave rise to the dispute in the first place. Can you tell us about one of your international appearances? One of my recent highlights was appearing in the Supreme Court of the incredibly friendly Island of Mauritius. I was given special dispensation to appear on behalf of Emtel, one of the mobile phone operators in Mauritius, who was suing the fixed line operator, Mauritius Telecom, for attempting to remove it from the market in favour of its own mobile phone operator, Cellplus (Case 2017 SCJ 294 Emtel v Cellplus). The case is now before the Privy Council. What in your view have been the main developments in competition law? Competition law has been litigated in the UK now for some time. However, the last few years have seen some fundamental changes in the way it is litigated. First, Brexit has made competition law more UK-centric. I appeared regularly manufacturers had admitted their liability as a part of the EU leniency and settlement programme. We successfully argued that the defendants should be bound by the findings of fact admitted as part of these programmes. It would be an abuse of process to re-litigate such findings in the domestic courts. The bread and butter, though, are the trials. There is much litigation concerning competition law, whether it be an appeal against a decision adopted by the CMA or a claim between two private parties. This year I have had a three-week and a five-week trial. Both amounted to complex pieces of litigation involving significant disclosure, witness evidence and expert evidence adduced by both sides. These trials do have extra dimensions. If the hearing is an appeal against an infringement decision it has the added dimension of being quasi-criminal because of the substantial penalties that are involved. That involves a greater duty 16 LAWYERMONTHLY JANUARY 2023
before the Courts in Luxembourg, and although I have rights of audience as a member of the Irish bar (having taken the bar exams because of Brexit), there is no doubt that Brexit has changed the way competition law is litigated. There are no references from the UK to the CJEU anymore. The CMA now adopts the infringement decision, whereas before Brexit the EU Commission may have taken the lead. Second, the last few years have witnessed a significant increase in class actions (including opt-in but particularly optout). The Supreme Court’s judgment in Merricks lowered the threshold for bringing such collective actions. The CAT now has several collective actions in the pipeline against big tech companies, transport operators and payment card schemes. These will all come to trial in the next few years and may represent a sea change in the way that private litigation is perceived as enforcing competition law. Third, because of the judgments in the Interchange fee litigation, most private claims for damages commenced in the High Court are now transferred to the CAT. Although the High Court retains jurisdiction where the competition law claim is mixed with a non-competition claim (e.g. contractual or a fraud claim), the CAT has effectively become the default forum for determining private law competition law disputes. The CAT is now the specialist forum for hearing all disputes involving competition law: the CAT determines private law claims in addition to exercising its statutory supervisory powers over the CMA. None of these changes present a problem. In this country we have an amazing system set up to determine anti-competitive practices: a robust and specialist competition authority headed up by and advised by some of the best competition lawyers and economists (the CMA), and a tribunal comprised of specialist competition law judges and leading economists (the CAT). We also have a Court of Appeal and a Supreme Court that comprises judges who were, when at the bar, specialist practitioners of competition law. In short, we have competition law expertise throughout the judicial system. What do the next two years have in store for you? The diary for 2023-2024 looks busy! The trucks cartel litigation starts in March 2023. I have trials involving pharmaceutical drugs (abusive pricing and a pay for delay). I am acting for Epic in the forthcoming trial involving Google which concerns the removal of the Fortnite game from the Android phone, and which in turn concerns the restrictions on operating competing app stores and in-app payment solutions. The banking libor litigation continues. In addition, I need to start writing the third edition of the book ‘Competition litigation: UK Practice and Procedure’. This is a cradle-to-grave account of litigating competition law: how to bring a claim, the correct forum, disclosure, summary judgment, remedies, the hearing, costs, appeals etc. Keeping the book up to date is like ‘painting the Forth Bridge’ – an interminable task. But that is what makes it all so interesting! FEATUREOF THEMONTH 17 Contact Mark Brealey KC Monckton Chambers 1 & 2 Raymond Buildings, Gray’s Inn, London WC1R 5NR, UK Tel: +44 02074 057211 Fax: +44 02074 052084 E: mbrealey@monckton.com www.monckton.com About Mark Brealey Mark Brealey is a barrister and a specialist litigator in all aspects of competition law. He regularly appears before the Competition Appeal Tribunal on behalf of companies appealing CMA decisions and has argued points of importance before the Supreme Court and Court of Justice of the European Communities many times. He is also the editor of ‘Competition litigation: UK Practice and Procedure’ and was recognised as The Times Lawyer of the Week beginning 25 June 2020. About Monckton Chambers Monckton Chambers is a leading set of barristers’ chambers with expertise across a broad swathe of civil and commercial law, with particular focuses on EU, competition, commercial litigation and arbitration, VAT and public and administrative law. Being one of the first chambers to move to Gray’s Inn in 1964, Monckton Chambers has a storied history of acting for large corporates, SMEs and private individuals throughout the private sector. There is no doubt that Brexit has changed the way competition law is litigated.
Each month, Lawyer Monthly Magazine has the privilege of interviewing the brightest and most ambitious movers in the legal space. In these conversations we dig into their areas of expertise, learning more about their practice and the stories behind their pursuit of excellence. This month we focus on the practice of Colin Russ, a prolific mediator who is consistently ranked among the foremost practitioners in his field. Colin’s feature delves into the mediation landscape in the wake of the COVID-19 pandemic, focusing on the new challenges that have arisen and how he has evolved his practice to tackle them. MY LEGAL LIFE
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Colin Russ Before becoming an independent commercial mediator, you were Head of Litigation at DLA (now DLA Piper) in their Birmingham office for 20 years. How has being a litigation lawyer shaped your approach to mediation? It is important to understand how everyone involved is seeing and feeling about the dispute. My background as a litigation lawyer enables me to understand the lawyer’s perspective and speak their language, and mediating for 22 years has helped me understand the way in which parties bring different motivations and interests to their dispute. It also means I can speak from first-hand experience My Legal Life The Key to Effective Post-COVID Mediation Even as mediation grows in popularity as an alternative to costly litigation, there remain various barriers to even greater uptake in the wider legal and business sector. These barriers are not insurmountable, however, as was proven when COVID-19 lockdown restrictions led to a surge in remote mediation. Prolific mediator Colin Russ comments on this and other facets of modern mediation in this article, which explores his own practice and his advice for making the most out of mediation. There is, of course, no secret magic ingredient to effective mediating – and if there was, I probably would not share it!
about the risks and uncertainty of litigation and the benefits of achieving a certain outcome through negotiation at the mediation. Understanding the way in which legal costs, CFAs, legal cost insurance and litigation funding works is also helpful, as these aspects are frequently an important dynamic in any negotiation. My familiarity with legal issues and litigation processes also helps me to read and understand the mediation statements and mediation bundle – which in many cases have grown over the years to more resemble trial bundles – far more quickly than would otherwise be the case. You have also been ranked in both Band 1 of the Chambers Guide and the Top Tier of the Legal 500 Guide for UK-wide mediators for the last 11 consecutive years. What do you think is the significance of these two leading directories for mediators in the UK? They have always been the main ‘go-to’ directories for law firms looking for mediators as, of course, both guides are also for the lawyers themselves, so they do trust the rankings. The work they do in researching mediators and obtaining feedback from the lawyers that have worked with the mediators is crucial; it helps Chambers and Legal 500 to understand what is going on in the industry and ensures it is real feedback and testimonials that ensure the mediators are ranked accordingly. Tell us about your CDR Remote offering that you launched during the first part of the COVID-19 pandemic in the spring of 2020. How has this changed the landscape of commercial mediation in the UK? From the outset of the pandemic and the first lockdown, it was thought that this would stop all mediation in its tracks. This would not have been too much of a problem if it were in the short term; however, it quickly became apparent that COVID-19 was not a short-term problem. We had to find a way to continue working through all the ongoing and upcoming cases to avoid a huge backlog. Online video calls were still an unknown to many lawyers and their clients, so communication and reassurance were key to delivering CDR Remote. Urgent self-education and familiarisation with the available technology was necessary. Going through that process, I realised that the in-person mediation experience with which we were all familiar could be very accurately replicated though the use of Zoom (in particular), as well as other platforms. For lawyers and clients, online security and confidentiality were key considerations, so initial concerns about Zoom needed to be and were quickly remedied. There were also entirely understandable concerns amongst lawyers as to just how the process would work in practice. By proposing free online pre-mediation calls, it was possible for lawyers and their clients (and counsel where involved) to become familiar with the technology and for me to talk through the logistics, as well as addressing the usual pre-mediation issues. This ensured a greater level of comfort and confidence for the parties and lawyers on the day. These online pre-mediation calls have proved to be exceptionally popular and continue to be part of the added value I try to bring to the mediation process. They are not confined to online mediations, but have also become popular ahead of in-person mediations. You have been described as ‘a calming presence’, ‘highly personable’, ‘very effective’, ‘thoroughly prepared’ and having ‘a knack for building rapport’. What do you think is the secret to being an effective mediator, and how do you bring parties together when they are seemingly far from resolution? There is, of course, no secret magic ingredient to effective mediating – and if there was, I probably would not share it! It is a multi-faceted role that involves It is vital to never lose sight of the commercial outcome and to instil energy into the process when it is needed. 22 LAWYERMONTHLY JANUARY 2023
bringing together a whole raft of skills and experience. However, there are some essentials. Proper preparation is key for me, and I ring-fence my mediation days to achieve this. Being able to demonstrate that I have read and understood the papers and identified the key legal, commercial and personal issues helps me to gain the lawyers’ and their clients’ trust. This speeds up the process of communication and enables me to question and challenge positions effectively and accurately. Managing the process well (and sometimes it feels like herding leopards!) is also crucial to avoid losing the opportunity that mediation represents to achieve an overall resolution – wherever possible getting away from the dreaded ‘half past four first offer syndrome’ that has bedevilled mediations from early days. It is vital to never lose sight of the commercial outcome and to instil energy into the process when it is needed. Allowing emotion and managing this calmly means that the parties feel respected and listened to. This, in turn, encourages them to acknowledge the flexibility that will be needed to get to a resolution. I think it is also important to recognise that, like everything in life, mediation is an evolving process and mediators need to be alive to this. It is not just the parties who need to be flexible in their approach; this is also a key requirement for mediators. You were referred to as ‘one of the most technology-embracing mediators in the UK’ in the recently published Legal 500 Guide 2023. Aside from CDR Remote, what other services do you offer that embrace technology? CDR Remote was born out of the COVID-19 pandemic, but what has become evident is that remote mediations MY LEGAL LIFE 23
remain a popular option post-pandemic. Lawyers have recognised that the process can and does work effectively online, although it may be the case that certain types of disputes lend themselves more readily to an online process. What is quite apparent, though, is that lawyers and clients enjoy working and mediating remotely. This is not the place to go into the details, but there are a variety of reasons why remote mediations have proved popular. Chief amongst these is simply that it works. For many years now I have offered lawyers the opportunity to book me via my website for a mediation in the same way we all book a table at a restaurant. My objective is to make booking me for a mediation as simple as possible, so my website offers complete transparency on fees, a ‘real-time’ online diary and a booking request facility which has proved to be extraordinarily popular. The website also includes a full CV and, inter alia, a collection of mediation practice tips which (where time permits) I email to an ever-increasing number of contacts. Can you tell us about one of your most challenging mediations? One of the most challenging mediations I remember was a multi-party mediation relating to claims brought by the main contractor against a structural engineer, and the proceedings of which also involved a steel fabricator. The dispute related to major structural problems in the steel frames of five car showrooms erected in different parts of the UK for a major automobile sales network, which involved a premium car manufacturer. In one case, catastrophic failure of the showroom structure had occurred and fatalities had only narrowly been avoided. Extensive rebuilding and remedial works were required across all sites and the costs of these, together with business interruption losses, were sought. The total claims were for more than £60 million. The mediation involved consideration of complex contractual issues, expert evidence going to causation and two mediations within one as the structural engineer and fabricator sought to blame each other. Ultimately, an agreement was reached between the structural engineers and fabricator which then facilitated an agreement with the main contractor. The agreements were entered into on the day after a 15-hour mediation process. Very significant costs had already been incurred, but the savings in future costs up to and including to trial amounted to around £2.5 million. Allowing emotion and managing this calmly means that the parties feel respected and listened to. Contact Colin Russ Colin David Russ t/a CDR Tel: +44 07816 782434 E: colin@colindavidruss.com www.colindavidruss.com About Colin Colin Russ is a leading, independent commercial mediator. He is a topranked mediator in Band 1 of the Chambers and Legal 500 Guides for 2023. Prior to setting up his mediation practice in early 2000, Colin was Head of Litigation at the Birmingham office of global law firm DLA (later DLA Piper). In the last 22 years he has since built a thriving, independent commercial mediation business. Colin’s clients include many of the UK’s leading law firms, who call upon his considerable expertise in high-value multi-party mediations, often involving complex multi-issue disputes. 24 LAWYERMONTHLY JANUARY 2023
These articles come from guest authors across a broad range of specialisations. Rather than focusing on subjects necessarily pertinent to law firms or the world of business, our special features most often touch upon new legislation, common law and the intersection of the contemporary legal landscape with the public interest. In the following pages, we take a look at some of the most headlinegrabbing legal stories of the past year – and our guest authors provide insightful commentary on talent retention during an economic crisis, the IP significance of Elon Musk’s Twitter purchase, and the wave of litigation currently rocking the insurance sector. All are sure to be of interest to any reader. SPECIAL FEAT URES
commons.wikimedia.org/wiki/File:Johnny_Depp_(3).jpg | creativecommons.org/licenses/by-sa/4.0/deed.en | (CC BY-SA 4.0) 28 LAWYERMONTHLY JANUARY 2023 T H E Biggest Legal Stories O F 2022
Though the world of law is often regarded by impenetrable by those outside of it, lawsuits and new legislation invariably make for some of the most hotly discussed topics of the news cycle. As this most recent year comes to a close, Lawyer Monthly rounds up the biggest and most impactful cases of the preceding months. The following are a selection of some of the most prominent stories from the legal sphere in 2022. While not necessarily the most damaging to those involved, each has commanded a significant share of press coverage and has continued to dominate the public consciousness even after their technical resolution. We expect to see their shockwaves spread yet further in the new year, setting the tone for many upcoming developments across the legal landscape. Written By Oliver Sullivan SPECIAL FEATURE 29
Johnny Depp v Amber Heard Defamation Trial Celebrity trials can be counted on to generate significant public interest, allowing a window into the lives of otherwise unreachable figures. The Depp-Heard trial proved no exception, gaining international interest throughout 2022 and becoming one of the most high-profile domestic violence cases of all time. The case concerned a December 2018 opinion piece in the Washington Post written by Amber Heard following her divorce from Johnny Depp after a 15-month marriage, wherein she described herself as having become “a public figure representing domestic abuse”. Depp sued Heard in 2019 for $50 million, arguing that the article’s allusion to alleged acts of abuse by him constituted defamation. Meanwhile, a separate libel case in 2020 against newspaper ‘The Sun’ for publishing an article referring to him as a “wife beater” found against Depp, generating further scandal. The allegations and their subsequent media coverage had severe consequences for Depp’s acting career and led to his departure from key roles in ‘Fantastic Beasts 3’ and other films. The defamation trial opened on 11 April 2022. In their opening argument, Depp’s lawyers labeled Heard a liar who was “obsessed with her public image”, while lawyers for Heard described Depp as “an obsessed ex-husband hellbent on revenge”. Further anecdotes of the couple’s tempestuous relationship were shared as proceedings continued throughout the spring and early summer. The trial finally came to an end on 1 June as the seven-person jury found that both Depp and Heard had defamed each other and that Heard was unable to substantiate her abuse allegations. In total, $10.4 million in total damages were awarded to Depp. Though the outcome of the case had impact on little other than the personal fortunes of Depp and Heard, sensational headlines continued to be generated throughout the proceedings. Research revealed that news coverage of the trial had generated more engagement on social media than articles about the Supreme Court and reproductive rights, even as the future of Roe v Wade hung in the balance. 30 LAWYERMONTHLY JANUARY 2023 Johnny Depp & Amber Heard Image Credit: https://commons.wikimedia.org/wiki/File:Black_Mass_11_(21268540588).jpg https://creativecommons.org/licenses/by-sa/2.0/deed.en | (CC BY-SA 2.0)
Elon Musk’s Twitter Purchase Saga Elon Musk’s $44 billion purchase of Twitter, which handily beat Google’s $1.5 billion acquisition of YouTube to become the largest social media deal of all time, would have been noteworthy enough as a simple transaction. But what might have been a straightforward share purchase turned into a legal quagmire that drew attention from news outlets and social media watchers worldwide. The saga began with contradictory statements regarding whether or not Musk – then Twitter’s largest shareholder with a 9.2% stake – would join the company’s Board of Directors. After Musk instead announced an offer on 14 April to buy the company at a staggering $54.20 per share, representing a 38% premium above its price at the time, the deal appeared set in stone. However, Musk subsequently tweeted on 13 May that the deal was “on hold”, citing concerns over spam accounts among Twitter’s user base. He soon moved to formally terminate the acquisition, leading to Twitter filing a lawsuit in Delaware to force him to complete it or else pay a $1 billion termination fee. Months of public feuding followed as Musk blasted Twitter for allegedly misrepresenting its internal issues, before finally coming to a close as Musk agreed to acquire the company on 28 October – a day before the date of the Delaware trial. The most recently emergent story of those collected in this feature, the Twitter story has also continued to produce new legal concerns well after the deal’s closing. Beginning with the mass sacking of Twitter staff triggering a class action lawsuit in California and compounded by the likely regulatory flashback of the sacking or departure of almost all compliance and content moderation staff, and most recently clashing with the EU’s Digital Markets Act by forbidding the mention of other social media sites on the platform, it seems that Twitter’s (and Musk’s) legal difficulties will continue to generate headlines well into 2023. Dobbs v Jackson Women’s Health Organization Easily one of the most influential Supreme Court cases of all time, the landmark 1973 Roe v Wade decision found that a woman’s right to an abortion was protected by the US constitution, thus laying the foundations for the legal recognition of reproductive rights in the contemporary US. The ruling stood for more than four decades as an integral protection for the bodily autonomy of women and a staple of political ‘culture wars’ – which made its overturning as a result of Dobbs v Jackson Women’s Health Organization all the more shocking. The case was filed in March 2018 by the Center for Reproductive Rights on behalf of Jackson Women’s Health Organization, the last remaining abortion clinic in Mississippi, concerning the state’s legislative ban on abortion after 15 weeks of pregnancy in all cases excluding medical emergencies or severe fetal abnormalities. A federal district court blocked enforcement of the law the day after it was signed, noting that it deliberately violated the longstanding precedent set by Roe v Wade, a position echoed by the Court of Appeals for the Fifth Circuit in December 2019. However, when the state of Mississippi asked the Supreme Court to review the ban, the Court agreed to consider the question as to whether all previability prohibitions were unconstitutional, marking the first time it had heard a case on the subject since Roe’s passing. Its ruling was issued on 24 June, with a 5-4 majority of Justices finding that the Constitution contained neither a right to an abortion nor a right to privacy. The ruling was historical before it even occurred, with the unprecedented leak of a draft memo concerning the Court’s planned opinion causing public outcry almost two months before the decision was made official. While the Supreme Court would find itself in more hot water later in the year as it emerged that Ginni Thomas, wife of Justice Clarence Thomas, had contacted the staff of former president Donald Trump to encourage the overturning of election results in Arizona, the Dobbs decision had by far the greater impact on the Court’s approval among the American public. Like Roe v Wade before it, the case is now set to define the political landscape and the lives of millions of women for years to come. SPECIAL FEATURE 31 Elon Musk Image Credit: Public Domain https://commons.wikimedia.org/wiki/File:Elon_Musk_Colorado_2022.jpg
It is no secret that top talent is hard to come by in the legal sector – and now the challenging economic climate is heaping even more pressure on firms. The start of Q3 brought a spike in the number of firms facing financial difficulties, and many are bracing themselves for a tough winter and a recession that could be the longest we have ever known. In this climate, it will certainly be difficult for many to offer the sky-high salaries and other rewards that some candidates now expect. Faced with economic uncertainty, more firms will be looking to reduce their costs as much as possible, whether it be personnel, business support services, or property. They might also avoid making investments in the very things that could help them to respond quickly to changes in the market and not just survive but achieve growth, such as technology. Non-billing teams, like HR, are sometimes areas that are looked at first for savings, yet this is invariably short-sighted. Talent acquisition and retention are critical to the success and survival of any firm because their expertise will help to steer the ship at the very highest level and deliver exceptional client experiences. When talent is in such short supply, firms need to invest in every aspect of the employee experience – helping them to develop their skills, progress their career and achieve a good work-life balance. It is easy to see IT projects as an area to cut back, and we are already seeing firms exercise caution when it comes to buying legal tech. Some are opting for essential software over the ‘nice to have’, or only purchasing it when it is absolutely necessary rather than seeing it as a vehicle for growth and innovation. But a reluctance to harness technology can be just as damaging as failing to invest in people. In fact, the two go hand-in-hand. Driving Efficiencies That is not to say that there is no room for greater efficiency in law firms in both billing and non-billing departments. Those who are still paper-heavy and reliant on legacy software can streamline their processes, helping people to be more productive so they avoid clocking up Special Feature Whether in the United Kingdom or abroad, economic hardship is becoming a threat to the success or even survival of many law firms. But how can they adapt to these difficulties and continue to develop their business and their staff? In this article we hear from Bishu Solomon Girma, Customer Success Director for Access Legal, who argues that firms should continue to invest in their people if they want to weather the economic turbulence and emerge stronger. HowLaw Firms Can RetainTalent in aRecession 32 LAWYERMONTHLY JANUARY 2023
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