We’ve all seen the office-wide email. Many of us send it out regularly. Let’s say you’ve just landed a new case and find out that the matter is pending before one of the more than 600 judges in Los Angeles Superior Court. Where do you start? You’ve never personally appeared before this judge. You have no insights into how he or she handles this type of case, whether the judge is more plaintiff or defense friendly, or whether he or she has previously ruled on your case-dispositive issue in the past. So, what do you do?
If you’re like most litigators, you send around an internal email asking (pleading, and in some cases, almost begging) for anyone in your firm who might have “any intel on your judge” to please respond to your email. What happens next is at worst the sounds of crickets, and at best a series of anecdotal responses that can most accurately be referred to as “anecdata.” Even when you do get responses to your email request, they are filled with non-actionable sentiments from colleagues like “that judge is a stickler for the rules” or “don’t put your hands in pockets during oral argument.” Information like that doesn’t help to guide your decision-making process or shape your litigation strategy.
Relying on this type of “anecdata” to determine whether to bring a 170.6 motion, or the best way to map out your overall litigation strategy, is not only no longer necessary, it’s doing a disservice to your client. The fact that lawyers have historically relied on experiential knowledge and anecdotes to make strategic decisions throughout litigation is especially absurd when you consider that we practice in an industry with vast volumes of data that can be analyzed, parsed and ingested to provide strategic insights.
A massive volume of public trial court data has, for the better part of a century, remained untapped for useful judicial insights and strategic trend analysis. Nowhere is this more apparent than at the state trial court level. For instance, the California Superior Court system is the largest court system in the country, serving roughly 12% of the population and nearly 40 million citizens. The system handles nearly 7 million cases per year, with 2,000 judges, some of whom have a caseload of over 3,300 cases per year. Despite this enormous data set, intelligence solutions that distill litigation insights at the trial court level have been slow in coming.
This is partly because lawyers aren’t trained to make data-driven decisions in law school or as we rise through the ranks at law firms. The lack of emphasis on hard data demonstrates the antiquated nature of an industry afraid to embrace technology, even as other industries use data and analytics to increase efficiency and profitability. In law school, our clinical law professors taught us to frame the argument and scour the record. But no one taught us to use data and previous decisions to tailor our argument at the trial court level, to seek hard data on how our own neutrals had ruled in the past and to tailor our arguments accordingly. The tools we were taught to use were archaic search engines combing through only published case law at the appellate level. Until recently, we had no way (beyond the “anecdata” described above) to gain insight on state court judges. Trial court data on Lexis and Westlaw is scarce at best, leaving junior attorneys to take shots in the dark compiling judge and arbitrator bios, or sourcing anecdotes.
But new legal research tools are dragging the industry, kicking and screaming, into the 21st century. Software that ingests and analyzes trial court decisions and provides actionable judicial and legal analytics are changing the way decisions are being made at every stage of litigation. Although the majority of tools that harness the power of data and AI to provide judicial and legal analytics serve only federal court, new products are emerging that ingest and normalize the massive volumes of messy, unstructured data sets that make up our state court system. These tools are opening up state trial courts to Google-like searches, allowing state court litigators for the first time to perform practical legal research. Areas of artificial intelligence like machine learning and natural language processing are progressing by leaps and bounds, and now represent the perfect tools to cull through the mammoth mountains of state trial court data. It’s now possible to quickly become an informed state court litigator relying on hard data and practical legal intelligence to inform your litigation decisions.
The days of sending out the “does anyone have any intel on my judge” email are coming to an end. If you’re not already using AI-powered legal intelligence tools, consider the fact that your opposing counsel probably is. The benefits of making data-driven decisions include increased efficiency, the ability to draft targeted motions tailored to your judge, higher motion success rate, and even better client retention. Examples of practical uses of legal intelligence and litigation analytics products include the ability to make strategic data-driven decisions such as:
- Should You Ding Your Judge? With legal analytics, it is now possible to judge your judge. Is the judge more plaintiff or defense friendly? How often does this judge issue sanctions? How often are peremptory challenges brought by either party? AI-powered “sentiment analysis” of past rulings can help determine whether your judge demonstrates uncharacteristically aggressive language in particular cases, an indication that she or he may be unfavorable to your client’s position from the start. Determinations which demonstrate where your judge is an outlier compared to other judges in the county and state may help to make a timely decision on whether to bring a peremptory challenge.
- What Motions Are Most Likely to Be Successful? Tools that collect, aggregate and archive searchable trial rulings open up endless possibilities for gaining strategic insights before drafting your next motion. Search through thousands of your judges’ prior rulings to determine how often she or he grants that type of motion, and in what matters. Closely examine the language in your judge’s past rulings, the organizational structure of legal arguments, and legal authority the court found persuasive, all before sitting down to draft your next motion. Data analytics products allow litigators to move away from a one-size-fits-all approach to legal writing, in favor of a more thorough and informed data-driven approach that is tailored to your decision-maker.
- Settlement Ranges? Although settlement information has historically been private and elusive, clues to settlement figures can be gained from massive culling of state court data. For instance, if you are defending a wage-and-hour case in trial court, reviewing prior motions for approval of class settlement can provide settlement ranges for typical matters brought against similar-sized employers. Motions for good faith settlement provide a similar peek into multi-party settlement ranges informing your practice and setting client expectations. Digging deeper, your opposing counsel may have been a party on a prior matter in which settlement information is available, providing layers upon layers of actionable insights.
- Attorney’s Fees? Strategic decisions like whether to seek attorney’s fees, how successful your claim is likely to be, and what amount may be shaved off by the judge, are all available insights that no longer need to be left to chance.
- Sizing Up Opposing Counsel? Technical advances aren’t only bringing transparency to judges. The same tools provide never-before-seen insights on opposing counsel, including such intel as their current caseload, what motions they are bringing, or have brought in the past. New win rate reports are available which analyze how often each attorney and/or firm win specific pre-trial motions. How often your opposing counsel takes similar matters to trial, and wins, can be incredibly useful intel that can be used to inform decisions about strategy and settlement.
- Setting Client Expectations/Building Confidence? One of a litigator’s most important and often under-estimated jobs is to adequately and effectively set their client’s expectations. Hard data and litigation analytics can help attorneys maintain their client relationships in multiple ways. First, using these tools will help to instill client confidence by demonstrating that you are aware of and willing to adopt state-of-the-art technology to gain a competitive advantage. Second, keeping your client informed and up to date helps to keep lines of communication open, and aids in managing expectations in difficult matters. In fact, sending judicial analytics reports directly to clients or GC can often help guide the discussion and obtain client buy-in regarding specific litigation strategies.
- Marketing Reports: Attorneys can now use the same legal analytics tools to distinguish their practice from their competitors. For instance, litigators can research useful insights on prospective clients, including where the company or client has been sued in the past, for what, and who represented them previously. Digging deeper, attorneys can determine whether the client’s former or existing counsel was unsuccessful, and why. This information can help a lawyer to position themselves as the better alternative to the client’s current or former counsel, with each claim backed up by hard data.
A New Era of Data-Driven Legal Practice Is Upon Us
This is a new era for attorneys in using hard data to make strategic data-driven decisions. Technical advances within legal and data analytics are jumping leaps and bounds beyond prior offerings and providing transparency and never-before-seen insights into trial court litigation.
Although these tools are disrupting the legal industry and providing a massive competitive advantage to every attorney savvy enough to already be using them, as with most highly effective tools, the competitive advantage will likely be a short-lived early adopter advantage. Soon, getting your judicial analytics report the moment you get an assigned a judge (along with your summons and complaint) will not only become commonplace, but it will also quickly become the very essence of our industry standard of care and duty of zealous advocacy to our clients. Relying on anecdotes and guesswork will no longer be an acceptable means of sourcing information during litigation. So the next time you’re appearing in trial court, start by reviewing the data and analytics associated with your matter, and your judge. Remember, your opposing counsel is likely already doing so.
About the Author
Nicole Clark is a business litigation and labor and employment attorney. She is also co-founder and CEO of Trellis Research, a legal analytics platform that uses AI and machine learning to provide litigators with strategic legal intelligence and judicial analytics. Contact her on Twitter @Nicole_A_Clark.