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    Wisconsin Lawyer
    October 07, 2020

    Solutions: How to Use Legal Analytics to Compete with the Big Guys

    Using a variety of advanced technologies, legal analytics finds meaningful patterns in raw litigation dockets and documents that reveal how individuals and organizations behave and provide unique insight into actions they are likely to take. With legal analytics, smaller firms can level the litigation playing field.

    Owen Byrd

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    Legal analytics is growing in importance as a resource for small and mid-size firms to compete effectively with large ones. When counsel is facing a larger, more well-funded opponent, with deeper pockets and more resources, access to data-driven insights about trends in litigation and the behaviors of particular judges, parties, and opposing counsel gives smaller firms a competitive edge for winning a case – or a new client.

    What Is Legal Analytics?

    In contrast to traditional legal research, which reveals controlling authority in cases, statutes, and rules, legal analytics reveals patterns in the behavior and activity of judges, lawyers, and parties. Using a variety of advanced technologies, such as machine learning and natural language processing, the technology finds meaningful patterns in raw litigation dockets and documents that reveal how individuals and organizations behave and provide unique insight into actions they are likely to take.

    Owen ByrdOwen Byrd is Lex Machina’s chief evangelist and general counsel. He is a thought leader on legal analytics and its value for the business and practice of law. He discusses legal analytics via speaking engagements, publications, webcasts, blogging, social media, and press.

    With data on how a judge may lean or how opposing counsel may behave in specific circumstances, firms can provide better counsel and develop winning strategies for the courtroom.

    How Small & Mid-Size Firms Use Legal Analytics

    Small and mid-size firms across all practices – including employment, consumer protection, contracts, patents, ERISA, and more – are using legal analytics in a variety of ways. The technology analyzes practice-specific data about case filings, motions, findings, remedies, and damages and presents it in the form of actionable insights. Analytics helps law firms provide better counsel, develop more accurate litigation budgets, evaluate parties and opposing counsel, and perform early case and risk assessment.

    Firms can also identify maturing practices and potential clients and develop winning case strategies, tactics, and pitch decks. Practices that use alternative fee arrangements (AFAs) even use analytics to create more profitable, data-based fee structures.

    Using Legal Analytics for Litigation

    Early case assessment is a particularly valuable use for smaller firms facing off against a larger opponent. Most firms conduct such assessments by using traditional research tools and resources and gathering anecdotal information (what we call “anecdata”) from colleagues and other legal professionals. Unlike these traditional sources, data derived from legal analytics gives firms deeper, facts-based insights into the potential behavior of judges or opposing counsel or parties. It can quickly determine the kinds of motions opposing parties have filed and whether they tend to settle or litigate, and it can specify the damages a judge has awarded in similar past cases. It identifies these trends and patterns in seconds, helping attorneys develop successful case strategies and execute tactics with greater precision.

    Insurance lawyers, for example, use legal analytics to quickly determine whether an opposing party typically puts significant effort into prevailing on summary judgment. In a product liability case, a firm can use legal analytics to gather data on the judge’s specific experience and the opposing counsel’s tendency to engage in motion-heavy pretrial practice. Here are the results of a few quick queries:

    • Judge William M. Conley is currently the most prolific judge in the Western District of Wisconsin, having presided over 37 percent of the district’s cases since Jan. 1, 2009.

    • Judge Barbara B. Crabb’s median time to summary judgment (SJ) is 398 days, compared to Judge Conley’s 412. However, the median time to reach the trial stage for Judge Conley is 497 days, versus 570 days for Judge Crabb. (Of note, Judge Crabb’s new case filings have decreased significantly since 2013.)

    • In the Eastern District of Wisconsin, Judge J.P. Stadtmueller has faster median times to SJ (392 days) and trial (529 days) than Judge William C. Griesbach, the next most prolific judge.

    Here in Wisconsin, which has seen a fair number of ERISA cases over the last decade, attorneys can use legal analytics to track a client’s success across both districts, see which judges consistently produced the best outcomes in the least amount of time, which one awarded the most damages, and so on. These examples only scratch the surface.

    Legal analytics is also useful in motion practice, in which insights from bottom-up data – combined with traditional top-down controlling authority – help clients make decisions with greater confidence. Analytics reveals the grant and denial rates for specific motions by individual judges in individual case types, such as a contested dismissal in copyright cases. In the past, clients wondering about their likelihood of prevailing on such a motion would have to rely on less comprehensive, less accurate anecdata hunches from other lawyers.

    Using Legal Analytics for Business Growth

    Large firms that have dedicated business development teams have an obvious advantage over smaller firms. These professionals track trends across geographic locations, firms, and practice areas by gathering information about recently filed cases, case outcomes, lateral moves, and new business wins, and they use this data to grow their business at the expense of their less-informed competitors.

    Legal analytics helps small and mid-size firms, which typically lack the resources for a dedicated business development department, build out their business and land new clients who might otherwise go to larger, more expensive, firms. It also helps firms proactively prevent existing clients from defecting to other firms. For example:

    • A mid-size regional firm used legal analytics to learn that an existing client was gradually shifting more routine employment disputes to a big, national employment firm. Armed with that knowledge, the firm quickly negotiated a favorable AFA with the client, preserved the relationship, and even expanded the caseload with that client.

    • A boutique patent-litigation firm used legal analytics to capitalize on an emerging trend in case filings. When the data showed patent infringement lawsuits by nonpracticing entities were on the decline, and pharmaceutical patent lawsuits were on the rise, the firm switched gears to target the pharma market – much to their advantage.

    • A mid-sized firm in a new business pitch leveraged legal analytics data to illuminate the actual caseload of a larger competing firm. When the prospective client realized that the competitor might be too busy to provide the high-touch experience they required, they went with the smaller firm.

    Armed with actionable intelligence provided by legal analytics, smaller firms can be nimbler and speak to a prospective client’s needs with the authority, confidence, and thoroughness typically expected from larger firms. This gives clients greater confidence in the firm’s abilities, which leads to stronger and longer-lasting relationships.

    The Future Is Bright for Small & Mid-Size Firms

    In addition to giving firms and lawyers a number of strategic advantages over competitors, legal analytics brings increased transparency to the legal industry, which improves both the business and practice of law in a variety of ways.

    Some law firms use legal analytics for lateral hiring to ensure that candidates’ resumés match their accomplishments. Corporate legal departments seeking outside counsel use analytics to find the most capable firm in a specific geography or practice area.

    In fact, corporations that use legal analytics often prefer their firms to do the same – for greater efficiency, insights, counsel, and results, but also to demonstrate that the firm has the tools it needs to succeed in a rapidly evolving marketplace.

    With legal analytics, clients will feel they are getting the high-touch experience they associate with a smaller firm combined with big-firm insights and capabilities grounded in actual litigation data.

    Legal analytics has fundamentally changed both the business and practice of law, especially with its ability to level the playing field for smaller firms. With access to new insights previously unavailable to firms of any size, small and mid-sized firms can now enjoy significant competitive advantage in litigation and across the entire spectrum of legal services they deliver.

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