By Nicole Clark.
Civil litigators stand at the edge of the present. They are asked to predict the future, to anticipate how an opposing party will respond to an issue, how a judge will rule on a motion, how a jury will decide on a verdict. These predictive powers are heavily thought to emerge from the doctrine of stare decisis— standing by things decided.
In essence, stare decisis is the commitment to precedent. It considers existing decisions binding, particularly those decisions that emerge from a court with appellate jurisdiction over another court. Stare decisis is what makes our legal system consistent and predictable, two hallmarks of judicial fairness.
It all sounds so simple. Yet complications lurk beneath the surface, rendering state trial-level courts a certain level of freedom from stare decisis. This freedom is as daunting as it is empowering. It requires civil litigators to look to the past in a different way, to predict the future with something other than citation histories.
Finding Things Decided
The primary task of an attorney is to analyze texts, find patterns, and make predictions about the future. According to Gail Gottehrer, an emerging technologies attorney based in New York City, “if your case is similar and has similar factors to another case, the results shouldn’t be too surprising.”
With this insight in mind, legal technology companies have developed platforms to unlock the routine and mundane tasks associated with legal research. Trellis Research, Bloomberg Law, and Premonition use artificial intelligence to mine state court records, aggregating data in ways that allow users to ‘Google’ search through—and collect information about—virtually any variable of their choosing. Attorneys no longer need to spend hours trekking to law libraries and courthouses to sift through case law. Nor do they need to wait for relevant cases to come across their path. In a matter of minutes, they can find the precedent they need through a targeted search, one that points directly to the para- graph—to the sentence—that addresses the pertinent legal threshold, the key factors influ- encing a court’s decision.
Some platforms have already performed much of this research for their users. Trellis, for example, has curated its own Motions and Issues library, which provides a catalog of the types of petitions that can be filed in each state trial court. Designed to perform the initial grunt work of legal research, this catalog sifts through thousands of relevant court documents and rulings to provide users with summaries of different motion types as well as guidelines for how to structure, submit, and respond to different types of petitions. The catalog then synthesizes judicial rulings to identify the relevant case law, legal thresholds, and state statutes state trial courts have considered when weighing their decisions on similar matters.
The Limits of Stare Decisis
Law libraries and legal archives make legal formalism possible. As one of the oldest theories of the law, legal formalism claims that judicial decisions can be explained by the facts of the case, the applicable laws, and the relevant legal precedents. Nothing more. But is this really the situation?
Consider the judicial system in the State of California. In many ways, it mirrors the federal scheme. As a three-tiered system, it is composed of a Supreme Court as well as numerous Courts of Appeal and Superior Courts. The decisions of the Supreme Court are binding for all of the lower courts. Similarly, the decisions of the Courts of Appeal are binding for all of the Superior Courts.
But here is the tricky part. The Courts of Appeal are divided into six geographic districts, operating in a system where geography has no influence on the precedential power of a judicial decision. In other words, there is no horizontal stare decisis. There are no geographical boundaries to the decisions of a Court of Appeal. Still, a Superior Court in the State of California must follow the published decisions from all of the Courts of Appeal.
That is to say, a decision from the California Fourth District Court of Appeal in Riverside County is just as binding on the Sacramento County Superior Court as a decision from the California Third District Court of Appeal in Sacramento County. While this might sound like an obvious and trivial observation, it creates a situation in which a judge from the Sacramento County Superior Court may be bound to two conflicting decisions from the Courts of Appeals, requiring him or her to choose which decisions to follow.
From Stare Decisis to Individual Judges
What happens when the power of stare decisis runs out of steam? How does a judge settle on a decision given two conflicting precedents? And, more importantly, how can a civil litigator anticipate what that decision might be? In these situations, knowing your judge and their predilections is just as—if not more—important as knowing your case law.
The ability to enter the mind of a judge is an extremely useful skill. “If I’m heading to trial, the judge is the person I need to know best, besides my wife—I need to get inside the judge’s head to figure out what will work and what won’t,” one attorney confides to Daniel Lewis of LexisNexis. This kind of mindreading requires more than a library of general, formulaic templates. It requires a deep dive into state trial court records.
Civil litigators are using legal technology platforms in order to perform close readings of the petitions, the memorandums, and the tentative rulings filed with the courts, collecting examples of the types of arguments that resonate with particular judges. According to Lewis, certain judges “[accord] themselves to patterns, like focusing on the third factor in a four-factor test.” Other judges tend to reuse the same language over and over again.
In other words, judges tend to use the same words to explain the standards for a successful motion to dismiss or a motion for summary judgment. They might cite the same legal maxim, or they might rely on the same sports analogy. By studying this language, an attorney can gain invaluable insight into how a judge thinks, how they write, how they rule. With these insights, civil litigators can make informed predictions about the legal arguments needed to convince a particular judge to rule favorably on a particular matter.
Binding to Persuasive
“Well, more often than not, judges view what we’re doing as a positive,” Lewis mused. “In fact, I have heard California Supreme Court judges frustrated by attorneys focusing on the wrong arguments…. So judges welcome attorneys that have tailored their arguments to what judges have cared about in similar past cases.”
As civil litigators stand at the edge of the present, they look to the past in order to predict the future. This past may not reveal everything about how an individual judge will behave in the coming weeks. It can, however, provide important insights at key inflection points in the litigation process, reminding us that even though the past isn’t always binding, it can often be persuasive.
About the Author
Nicole Clark is CEO and co-founder of Trellis Research Furthermore she is a business litigation and labor and employment attorney
Trellis is an AI-powered legal research and analytics platform that gives state court litigators a competitive advantage by making trial court rulings searchable, and providing insights into the patterns and tendencies of your opposing counsel, and your state court judges.
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