There are a lot of time-honored truisms in the world of litigation. Don’t ask a question you don’t already know the answer to. If the facts are against you, argue the law; if the law is against you, argue the facts. Never fill out a time sheet today if it can possibly wait until tomorrow. But few nostrums have been more durable through the years than the notion that litigation is a law firm’s best friend in bad times — an economic hedge against disaster when other, less sturdy practice areas take a header. “I’ve heard that for years, and even that [litigation] goes up the worse things get,” says Robert Hays, Jr., chairman of Atlanta’s King & Spalding. “But I can’t say I’ve actually seen that to be the case.”
With good reason. It turns out that litigation isn’t quite the countercyclical profit engine it’s often touted to be. An array of empirical legal studies put out by firms, consultants, and academics during the last year show that, in this downturn at least, litigation has suffered right along with the rest of the legal economy. The best that can be said is that it has been less bad than its transactional cousin. “It’s really a question of degree,” says J. Warren Gorrell, Jr., chairman of Washington’s Hogan & Hartson. “There’s no question that the corporate business practices have been more adversely impacted than litigation, but litigation is off, too, and that is different than in some prior downturns.”
