My supermarket wants to know what items I buy, what offers I take advantage of, and the frequency of my visits. They know by analysing the data where the best positions on the shelf are to sell particular products. Football clubs know precisely how far each player runs, the types of pass they make, shots on target etc. So, if every enterprise in the non-legal world wants to have data and regards it now as invaluable for the making of decisions why are some lawyers, and probably most barristers, so reluctant to invest in proper data analysis?
What this short piece, written by a technophobe, seeks to do is to query whether we can continue to ignore data and analytics and whether we should be doing more with available data. We also need to consider what data others may be using in the litigation process.
Solicitors, third party funders and larger clients are able to use proprietary data to help them predict how long cases will last and the likely cost to the client. Larger firms and funders will also be able to use proprietary data to analyse the litigation profile of particular clients and opponents and to identify trends in litigation. Clients want to know how long the case will take, how much it will cost and whether they will win. Cases can be analysed with reference to the solicitors conducting the same. Such analysis should identify not only the type of case but at what stage the matter concluded and whether that was at trial or by way of settlement. Similar analysis by reference to the actual parties may indicate whether they have a tendency to settle claims or fight the same.
Reducing the levels of uncertainty, whether that be in relation to the length of time to trial, the cost or likelihood of settlement will always be in the client's best interests. While data will never enable anyone to advise with absolute certainty how long the case will last, what it will cost or whether they will win, reducing the level of uncertainty may be possible with the sophisticated use of data.
Established third party funders have substantial proprietary data from funding inquiries which they are able to use to assess case quality, to identify trends in disputes, and to aid portfolio construction. Combining external and internal data provides them with a competitive advantage and informs decision-making in relation to the funding. That combination of internal and external data is also available to solicitors.
Barristers have always been the holders of valuable information but it was rarely called data, it was incapable of analysis and consisted of 'What's Judge Bloggs like?' or 'Is Smithers-Brown any good?'. More than 30 years ago as an instructing solicitor I expected my counsel to possess such knowledge and much of the time they either did (or perhaps more likely pretended that they did). Such inquiries are still made, often on chambers internal emails before a trip to a far-flung court. It is little more than legal gossip.
Proper data analysis should allow the user to know how many times Judge Bloggs has dealt with cases involving a claim for an account of profits and how they dealt with the same. Similarly, it should be possible to consider how a particular expert has been regarded in previous cases, whether their evidence has been preferred and what criticisms have been made of their approach. How often has your opponent been in cases in the particular court – is their robing-room bravado matched by reality?
Most barristers have access to huge amounts of data relating to decided cases through resources such as Westlaw and Lexlaw. While we may have access to vast quantities of data relating to parties to litigation, judges, experts, judgments, barristers and law firms the chances are that we are not using particular tools to analyse that data other than doing searches on the same and hoping that helpful results come up.
Barristers in private practice in chambers will have very limited, if any, proprietary data. Certainly, most data about particular cases cannot be shared within chambers. It is confidential and the other side may be represented by a colleague in chambers. Chambers data is likely to be non-case specific but if cases are entered with particular codes relating to the type of case some data may be available as to the trends in the type of cases that are being dealt with by chambers and what proportion of chambers income is generated by different types of case.
While chambers may have very limited proprietary data it would appear that very few chambers have yet invested in platforms that offer data analysis of current or decided cases before the High Court. Solomonic is one of the best known of those platforms and I have had access to the same. While access to the law reports online would enable me to search out cases that a particular barrister or judge has been involved in, a more detailed analysis of the data that is out there may enable me to know what types of cases particular judges have dealt with, the success rates of particular types of case, the success rates and appearances of particular barristers, settlement patterns, and the appetite for particular clients for trials.
The analytical programmes are initially a further excuse to search out your own cases, clients and solicitors but once that novelty has worn off and one becomes more used to how the program works and the glitches in it one realises that while the use of data may not tell you whether you are going to win or not it may be of great assistance in one's strategic planning. We all know that the majority of cases settle, so using data to improve settlements and achieve certainty of outcome, duration and cost is crucial. From a recent panel discussion at London International Disputes Week it was clear that large client companies, funders and the larger litigation specialists are utilising profiling and data to help with settlements and achieve greater certainty of outcome. They also have a better idea from the use of data of the likely timescale of the litigation. If a legal director can say to the finance director that this particular type of case will take on average a particular length of time to reach trial but the particular solicitors on the other side have a higher than average tendency to settle at a particular stage that is information that enables the finance director to budget more accurately and possibly to be persuaded to be more generous in the allocation of resources to the litigation.
However, while data can narrow down uncertainties, it cannot predict case outcomes with absolute certainty, as there will always be factors beyond data analysis. Data can be misleading. Inevitably I searched on my own name and found that I had more successful outcomes before a particular judge in the Commercial Court than any other barrister. While that data may have pleased me it was seriously misleading. They were all hearings in the same litigation which eventually resulted in a civil restraint order being made against the litigant in person. Data is useful but there are always more layers to dig down into. As barristers we must assess and balance all the different sources of intelligence available to us.
There is a danger that the Bar will get left behind in this area. If clients, funders and solicitors are increasingly using such data they will at some point expect their barrister also to have access to the data. Access to data is going to become an expectation for sophisticated entities and clients, and not utilising it may lead to dissatisfaction.
Providers of litigation data analysis unsurprisingly pose the question whether we will soon be at a point where failing to make use of data analysis in litigation could be considered negligent. In my view we are quite a way off from that being the case but it is a tool that will be increasingly used and in due course those without the tool will lose their competitive edge and may find they have disappointed clients and instructing solicitors.
Originally Published by Counsel magazine
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