In terms of his key takeaways from the current market, Balmer said that more people are seeing litigation, as well as disputes in general.

“I think with the unstable economy at the moment, there’s a lot of uncertainty, and we typically see an uptick in disputes when that happens. Money isn’t as easy to come by. There’s a higher cost of goods if you’re in those kinds of industries. And contractually, people are more in it for a bit of a stoush to get their money that they want,” he said.

“And so, we’re seeing that, but equally just much more regulatory enforcement and regulatory involvement in different areas. I think the Australian regulators are getting a lot more actively involved in new and existing areas; they’ve always been involved in finance, and APRA has a constant disclosure regime, but a lot more focus on things like crypto. The super funds are in the crosshairs right now trying to deal with regulatory enforcement and investigations, which I’m not sure they’ve had to do that a lot in the past from the experience that we’ve had.

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“And I think some of the other ones [that] come up quite frequently are ESG and the greenwashing side of things, as well as the class actions that come off the back of that. I think companies are going to have to be careful with their environmental claims in the next few years.”

Taking into account all these considerations, as well as cyber risk and privacy concerns, Balmer said that on the ground, senior in-house lawyers and legal department heads are “very” worried about the increased risk of litigation.

“The sentiment, especially over the last 12–18 months, has changed with the economy. I think everyone’s very, very much open to a conversation with us. You know, our area is helping people with the data within disputes, and they’re interested in having a conversation about how we can reduce costs in those areas, either because they’ve just come off the back of a piece of very expensive litigation or they’re seeing that they’re coming into the crosshairs in the future,” he said.

“It’s really interesting, though, we’re seeing cases from areas we haven’t seen before. The new Privacy Act update is going to be really interesting. And I think a lot of people are scrambling not just to change the wording in their contracts but also [to] make sure that there’s some kind of organisational change in their systems, in how they manage their data, to make sure that they align because it’s a much more user-centric world these days, and a lot of folks aren’t prepared.

“The other area as well is the energy transition. Australia has ambitious energy transition goals, and there are issues with new technology, satisfying the regulatory conditions that are being changed all the time, and things that are obvious as well with an unstable economy, like supply chain issues. And we’re going to see a lot more of those, especially large international companies, come into Australia to try and help with that transition as well. We’re going to see a lot of disputes in energy.”

When taking all these regulatory concerns into account, it’s important for law department leaders to begin to build a successful litigation approach in FY2024–25.

“Getting your data ducks in a row is really, really important. Sit down, have a think about your information governance. Get some help with that if you need it. It’s going to be unbelievably important across so many different departments, as well as different areas of risk.

“[Secondly], assess your partners. Who are you working with? If this happens, if we get to litigation disputes, who are the partners you’re going to have? Look at the metrics that they’re providing. You look at the pricing, maybe look at alternative pricing models for certain aspects. It’s a give and take. You have to provide data to them to be able to put together something useful, because we do it, too. We develop fixed-cost pricing and those kinds of things, but we need data to be able to do that for our clients,” Balmer said.

“And training is the other big one. Train the business, make sure they understand the risks of the actions that they’re taking, understand the risks around the data as well, and when they’re storing it and using it and deleting it. A lot of these issues that we see within cyber and privacy are because of people just not knowing better and making human error.”

The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Tom Balmer, click below: