The future of litigation analytics

The relentless march of digitisation has many consequences. While businesses across every sector and industry continue to move towards a digital future, they also have to adapt their approach to customers, services and products. They need to adjust to a real-time, information rich, online marketplace that has become the norm. The same is true in legal practice, even if lawyers have been characterised as slow to embrace the idea.

Unlike most law firms or barristers’ chambers, some businesses have completely redesigned their operating models to maximise the advantages of digital technologies and keep pace with connected consumers. Others have developed qualitatively new models centred on disruptive digital opportunities.

As a result, data has become regarded as the most precious commodity on the planet; more valuable than oil and with seemingly limitless potential applications. As companies at the forefront of this data revolution, Alphabet (Google’s parent company), Amazon, Apple, Facebook and Microsoft have become the five most valuable listed companies on the world’s stock exchanges.

The legal profession is still perceived as a laggard in embracing the full potential of new technology while lawyers are characterised, often unfairly, as being late adopters of new technological advances. But despite this characterisation, in the provision of legal services  data has become increasingly important, and skilled use of data is a critical tool which can allow practitioners to gain greater competitive advantage over each other.

And yes, lawyers are investing, most recently in an assortment of artificial intelligence (AI) systems, as the legal profession sees the clear economic advantages in automating everyday tasks. Seen as an increasingly indispensable tool for coping with the ever-growing amounts of data which they handle in managing complex tasks, AI has arrived in the legal sector a big way.

At this point in time, technology in the legal sector has its limits; barristers are not about to be replaced in court by legal bots arguing in front of a digital judge and a virtual jury. However, a report published last year, Digital Justice, co-authored by the government think-tank Reform and Accenture, made a strong case that there is an opportunity to use technology more effectively, particularly in adopting video technology to create virtual courts. The report suggested that one benefit of this would be to minimise regional differences in the time taken for cases to come to court. It also recommended that the judiciary and prosecutors embrace technology more wholeheartedly.

For good reason, businesses have usually been averse to litigation because of the associated costs and risks, both of which are inevitable parts of the process. Unlike the spread  of conventional commercial activities, cost is often very hard to quantify: sometimes it can become relatively open-ended. However, there are circumstances where settlement of a dispute is not possible leaving businesses with no choice but to become involved in litigation, albeit as an unwilling participant. When they do, intelligent use of data can be critical in helping to deliver a greater level of certainty. Providing a more accurate measure of the level of risk and associated cost are the two essential elements of litigation analytics.

Businesses have been using a variety of different systems which employ data analytics for far longer than lawyers. They help them to manage and mitigate all sorts of risk across disparate areas of activity. To keep pace with their commercial counterparts, lawyers are increasingly turning to a range of new technologies to try and establish a degree of comparative advantage and to satisfy an increasing demand from their clients.

The breadth and depth of available litigation databases can add value to the advice given by  dispute resolution lawyers when they are advising commercial clients. As a result, they are able to give a more informed view concerning  risk and cost. Furthermore, lawyers can create a distinct litigation strategy shaped in part by the data. This can deliver greater certainty in predicting the potential outcome of some cases, supplementing other available information relating to risk and cost.

Nevertheless, this may not be enough. Despite dispute resolution lawyers becoming better informed through relevant data , they can only offer a wiser view, in particular the likely outcome of a case, if the data is easily accessible and in the right format. Only then can it be properly evaluated and incorporated in the strategy of the case.

The wealth of potentially useful data stored in documents, statements and court judgments is perhaps most apparent in litigation, as well as the allied issues of discovery and investigation, where its impact on legal practice has been labelled as an ongoing revolution. Analytics can help litigators to make sense of a morass of electronic information, applying techniques ranging from email threading to analysing timelines and communications.

As it continues to develop, litigation analytics has become a discrete area of research and analysis. It allows lawyers to search millions of records, in order to give better advice to clients, predict a range of potential outcomes with increased confidence and certainty, and better inform their litigation strategy.

But what about all the information that lawyers now have access to, in the form of those millions of records? Fashionably, this is called Big Data because of its gargantuan proportions. However, using it means much more than simply having access to, or holding data for its own sake; the value of accessing this volume of data relies on the effective analysis and interpretation of the content, to discover the key arguments, cases and documents for the matter at hand. In practice, this requires intervention to release and realise the full potential of data by refining and making it accessible.

The process of synthesising refined data therefore requires an ability to look at the raw data from a multi-dimensional perspective, incorporating techniques such as machine learning and natural language processing. This provides a level of detail that would not otherwise be possible when refined by human hands alone. This has arguably become one of the most critical factors in trying to stay ahead of the competition, not least because of the benefits that it promises to deliver in cost, efficiency and effectiveness both for lawyers and for their clients

Despite the interconnectedness that comes with ever more digitisation, significant volumes of unstructured and unrefined legal data are still created, making proper management of it a universal problem. As is deciding exactly what data to use and when to use it. Each new relevant case that is brought to court only adds further to the substantial existing body of knowledge that a lawyer potentially needs to consider in order to do their job effectively.

That task is not automatically made any easier, however, by the presence of a simple search tool as an access point to an increasingly large database, particularly when the data remains raw and often unmanageable. To deal with the challenges which this presents, software tools which reveal key information and patterns in data are becoming increasingly important for lawyers. These involve the application of data analysis methods, techniques and technologies to improve efficiency, gain insight and realise greater value from available data.

There are many different types of legal analytics tools, but they all share one common characteristic: they enable a large body of data to be explored along different dimensions allowing distinct patterns to emerge. When applied to the relevant data, lawyers are then able to drill deeper still and find what is appropriate and important for their matter at hand.

A key element of modern litigation strategy therefore is thorough research of the wealth of information available. This has to fulfil two criteria; it must be both effective and comparative. Essentially, it must help to put data about previous cases into context.

Significant technological improvements and growing demand from practitioners have caused data-driven research to become increasingly more innovative, notably in the methods available to lawyers for evaluating and interpreting big data. This can range from historical information about judges and lawyers, including the cases in which they have been involved and the decisions reached, to the different parties in dispute, and even specialist IP issues, such as patents.

The major databases delivered by large service providers operate primarily as search engines, offering relatively few tools for automated analytics. However, the critical element for lawyers is for more value to be added by organising data so that it can be analysed comparatively. This is achieved through using technology to improve how we access and analyse the law. This is the driving principle behind Justis.

Analytics of judgments and legislation can achieve exactly that by streamlining the research process. The flagship JustisOne platform enables those conducting legal research to access the most cited parts of a judgment instantly, quickly find related authorities, and read cases side by side from different jurisdictions. Unique visualisation tools can help legal researchers determine if a case is current and good law in ways not possible through traditional searching, as well as providing a quick overview of which cases may support or challenge it. All of this is designed to make the process of legal research more efficient when building a new case. Not only does this help lawyers become more effective in evaluating the data, but it also helps to develop their strategy when using the platform.

However, the application of technology can go well beyond just case law research. Armed with the right tools, practitioners have the capacity to scrutinise earlier decisions reached by the judge presiding in their case. By seeing which precedents that judge has previously relied on, questioned or challenged, they can then adjust the arguments put forward in the current case. By examining a judge’s previous decisions, lawyers can make data driven decisions about their tactics with greater confidence.

There are obvious questions to be considered about how far analytics can go in delivering reliable and potentially invaluable information, and whether these may fundamentally alter the nature of the legal profession in the future. As more analytics tools are developed in new and innovative areas, it will be essential for practitioners to ensure that these continue to work to their advantage, and remain complimentary to lawyers’ research and analytical skills.

Without question, litigation analytic tools are already making a real difference to practitioners, and they will be even more important to their daily work in the near future. As this happens, technology will become essential in supporting litigation strategy when building a strong, well-researched case.

Masoud Gerami, Managing Director of Justis

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