In a recent post I wrote that judges’ personal foibles and idiosyncrasies — I mean their distinctive, well-informed, jurisprudentially ingenious perspectives — can drive litigation outcomes more than any objective view of the law or evidence would seem to warrant:
“My introduction to this came when I was a prosecutor in Manhattan. When my colleagues and I brought a felony case we knew all of the personalities among the judges on the trial court to whom that case might be assigned.
“And our prosecutors’ grapevine functioned well. We had either firsthand experience — or readily available, reliable accounts of a professional colleague — to inform the way we argued law or handled evidence before any particular judge.
“Some judges tended to disbelieve police testimony. Others would never impose a greater sentence than the law absolutely required. Some were meticulous on evidentiary objections. Others were relatively loose on such rulings. Some were temperamental. Others were reasonable.
“Learning the judge’s personal idiosyncrasies was always my first order of business when I was assigned to a particular judge for trial.”
This is the outlook of every lawyer assigned to try a case before a particular judge: Who is this person who’ll be calling the shots on my case, and how have they handled cases like the one I have before them now?
In the narrow category of cases that my colleagues and I handled — major violent felonies tried in New York County Supreme Court — there were only a few dozen judges whom we had to know. And keeping track of their quirks, flaws — and good traits — was relatively easy even on a word-of-mouth basis.
But the staples of business litigation include a wide range of civil cases* handled by a wide range of judges and wider range of trial attorneys: Commercial disputes, patent and other intellectual property contests, product liability cases, securities lawsuits, and various “business torts” (a partial list, to be sure).
And the match between a lawyer and a judge assigned to any such business lawsuit is not nearly so close. It’s a lot more likely that a lawyer with, say, an insurance case, will be assigned to a particular judge and have no idea of how that judge views such cases.
That’s where legal analytics software systems come in.
Consider, for instance, that lawyer with an insurance case.
In describing a recent legal analytics roll-out in the insurance field by Lex Machina (LexisNexis is the parent company), the journal Insurance Advocate put it this way two months ago:
“With legal analytics, insurance lawyers can discover:
– what types of cases have actually been litigated;
– who represented the opposing parties;
– how long the parties litigated;
– what findings the court or jury made;
– what damages were awarded.
“It can also provide a detailed litigation history of an opposing party, allowing counsel to understand the party’s strategies and litigation outcomes. Using that information, both in-house counsel and their law firms will be much better equipped to predict how long a case may take, how much it will cost, what damages might be expected, what strategy their opponent might employ, what strategy is likely to be successful, and many other important considerations.”
And the sheer volume of relevant data exceeds anything that could be addressed word-of-mouth:
“Lex Machina’s new Legal Analytics for Insurance Litigation module brings data-driven insights to insurance cases pending in Federal District Court from 2009 to the present. The module includes over 93,000 cases (including class actions) involving disputes between an insurer and a policyholder, a beneficiary, or another insurer asserting the rights of a policyholder. It covers a broad spectrum of policy types including home, life, auto, commercial and professional liability, health, disability income, and many more, with the exception of Medicare, Social Security, surety bonds, annuities and ERISA claims.”
Legal analytics presents a powerful and relatively new (circa 2006) technology to help your company’s lawyers know who exactly they’re dealing with.
In Part 2 I address a development that expands access to this tool beyond the largest cities and most elite law firms to smaller towns and smaller firms.
* Of course business is subject to criminal law as well.