Successful Litigation Strategies of the Future Will be Supported by Data Analysis
Modern litigation tools are far more advanced than ever before and they are continuing to evolve at a rapid pace. Developments in legal technology such as trial court data analytics are helping attorneys make better, more accurate and pragmatic legal strategic and tactical decisions on the proper course of representation for their clients. These tools offer the ability to synthesize vast amounts of data that previously were unstructured or siloed in applications that did not talk to one another.
This ability to connect, process and analyze data has created an environment where the litigator and corporate legal department of the near future will easily be able to use a single platform to determine a judge’s tendencies and preferred arguments, the likelihood of cases settling, the billing rates and litigation client rosters of competing firms, the litigation history of any party, lawyer and law firm, and much more. The data revolution is coming to litigation, so get ready to bear witness to tools and capabilities - never even imagined just a few years ago - to become the industry standard.
Indeed, legal technology has now become so pervasive and has improved so rapidly that the American Bar Association (ABA) and 36 states have adopted technology competency requirements in their ethical rules, reflecting clients’ expectations that their attorneys will use the best possible technology. Soon it will be an industry-wide expectation that litigators use artificial intelligence-powered analytics technology to evaluate judges, jurisdictions, opposing counsel and parties to gather as much actionable intelligence as possible before filing a complaint, motion or settling the case.
The client of the near future will expect lawyers to accurately advise them on industry and jurisdictional data like billing rates, jury and arbitration awards, and judicial caseloads (i.e., how fast the judge is expected to be). Current legal technology aims to make the attorney’s job slightly easier, but near-future technology based on trial court data analytics will provide litigators with a massive competitive advantage in these and other areas. Of course, there will always be parties, lawyers and a judge applying law to facts, but the new tools will enable a level of analysis, efficiency, speed and quality never before possible in the business of litigation.
The Expanding Use of Analytics
Speaking in practical terms, law firms will use AI-powered analytics to:
Assess potential venue options by analyzing dockets and the results in prior cases.
Evaluate the effectiveness of opposing counsel and their propensity to engage in motion practice or actually take cases to trial.
Analyze prior case law and the decisions of specific judges to target more effective strategies and arguments.
Target specific language that proved successful and persuasive in prior cases.
Challenge opposing counsel’s expert witnesses.
Specifically, the data revolution in litigation will manifest itself in three primary ways over the next few years: (1) judicial and trial court analytics, (2) business intelligence, and (3) litigation portfolio management.
While these tools currently exist, they still have significant limitations These shortcomings, such as limited data sets, unreliable results, poor or non-existent integration, and difficulty of use will soon be overcome, however, setting the stage for a paradigmatic shift in how attorneys practice and prepare for trial.
Judicial and Trial Court Analytics
In the near future, it will be malpractice not to employ the use of a judicial and/or trial court analytics platforms. Attorneys will consider a problem or question, do research, develop an argument on how the problem should be solved, and use data analytics to qualitatively test the argument. Based on the results, the attorney may be able to pinpoint where their experiment failed.
This new litigation technology creates the ability to employ analytics-based strategies that are more empirical and “evidence-based,” in the sense that they more clearly informed and predicated on supportable precedent.
For instance, if an attorney has information about how often a judge grants a type of motion based on a specific argument, the attorney can decide whether it is necessary to make that argument or use a different litigation strategy and can, at a minimum, keep their client better informed.
It should already be unthinkable for a litigator not to analyze their judge’s tendencies and preferences given the availability of tools enabling such analysis at both the state trial court level (like Gavelytics) and federal district court level (like Lex Machina). Litigators can quickly find information on a judge’s background and rulings through online databases. Newer technologies can turn that information into useful analysis for lawyers and their clients.
For example, a defense attorney may want to assure a client of their decision to file a motion for summary judgment by showing that this particular judge has a better than average propensity to grant this type of motion. Of course, a different conversation would take place if the judge were less favorable to such defense motions. In this case, the attorney may utilize a database of rulings to better understand whether the motion measures up to the types of motions that the judge has granted in similar cases.
In the near future, litigators and appellate attorneys will be able to see how often a judge’s rulings are reversed on appeal. Such information is useful because it may reveal a judge’s propensity to make errors, which then allows the litigator to pinpoint those errors and bolster their case. Further, this information would expand the user base of litigation technology into the appellate sphere.
There is currently a gap in the legal technology market for competitive intelligence (CI) products that can provide useful and strategic information on opposing counsel, insurance companies and business entities with a stake in the litigation. The few available products are limited and have shown significant flaws in the data they generate. The first product to figure out how to provide accurate and reliable intelligence on a broad array of companies and firms will be very successful.
Once this occurs, attorneys will have vast amounts of competitor data at their fingertips. They will have instant access to any firm’s clients, how much they charge, which law firms are hired by a company, and much more. By knowing the particulars of your competitors’ rate structure for legal services, law firms will be in a better competitive position to develop strategies to bring in more clients and secure more business from current clients.
Litigation Portfolio Management
Major companies and insurers often handle vast numbers of litigation matters at any given time. Case management software has enabled litigation firms to handle a large number of individual matters at a time with relative ease by using case management suites, which use analytics to give managers useful information about law firm performance. Firms can track billing rates, jury and arbitration awards, case length, and numerous other metrics. Moreover, firms may be able to analyze their market position by comparing their client base, fees, and revenue to other firms. These advances are made possible through the use of AI in legal technology to process and structure very complex legal data into meaningful reports based on statistical analysis. AI capability in tools such as online research and e-discovery have greatly streamlined attorney workflow. Moreover, some discovery tasks have been practically automated through optical character recognition (OCR), technology-assisted review (TAR), and predictive coding.
Newer technologies have even used AI to help attorneys decide whether to take a case. One product takes information about a cause of action and some important facts, searches through client documents, and pulls out more important information for the attorney to consider. Such products can help in-house counsel and litigation firms save money by identifying problems in the case at the earliest stage.
It will be soon be unthinkable to litigate without leveraging legal technology that provides judicial and trial court analytics and competitive intelligence. While some of these future tools are available right now, many are not quite at the stage where they will provide the desired results on a consistent basis. We are not far from this stage, however, and once we reach this point these products will be ubiquitous in the practice of law. Attorneys will see better outcomes and clients will be more satisfied working with technologically informed attorneys.
The future of legal technology is bright. Brilliant data scientists and entrepreneurial attorneys are joining forces to change the entire legal industry. Although large law firms have always been the first to adopt such new technology, it will not be long before the marketplaces scales legaltech tools for use by the entire industry. By preparing and accepting this reality, firms of every size and structure can remain competitive into the future.
About the Author Before founding Gavelytics, Rick spent the better part of a decade as a "big law" litigator, working primarily on large real estate and other commercial disputes. Rick received his law degree from the UCLA School of Law, where he was the Senior Articles Editor of the Journal of Law and Technology and also a judicial extern for the California Superior Courts. Rick completed the Executive Program at the UCLA Anderson School of Business and received his undergraduate degree from the University of Southern California. When he's not designing cutting edge litigation solutions, Rick loves spending time with his wife and children, playing golf, and skiing.