Legal practice, even among general counsel, has not historically been a field that is subject to precise quantification. Legal department expenses are an exception, something all general counsel measure with precision lest they risk finding themselves measuring the length of their curricula vitae. However, new tools enable general counsel to measure and quantify things such as the experience and performance of outside law firms, the tendencies of judges and plaintiffs’ counsel, and how different jurisdictions compare with respect to litigation risk. These new AI-powered tools — state court litigation analytics platforms that analyze vast amounts of trial court data and documents — enable general counsel to gain new insights, measure previously invisible facts relevant to litigation management, and know things their competitors and opposing counsel might not know.
Measuring outside law firm performance. Frequent litigation is a cost of doing business in the United States. Legal departments that effectively select and manage outside litigation counsel help their organizations reduce exposure and expenses. The old way (the way most organizations still do it) is selecting outside litigation counsel based on personal relationships, anecdote, and law firm reputations based on vague criteria. This results in inefficiencies — counsel mismatched to the matter or the judge, low-performing counsel chosen because of personal relationships, and money wasted.
The new method of selecting outside litigation counsel for a state court matter relies on using a litigation analytics tool to determine which law firm in the relevant jurisdiction has the most experience with the type of case in front of the assigned judge or against specific plaintiffs’ counsel. Armed with that information, general counsel can make more informed selections of outside law firms.
Why choose expensive, big law firm X when less expensive law firm Y has won 10 similar cases in front of the same judge over the last few years, or when six cases reached fast settlements against the plaintiffs’ firm? If a particular case lends itself to summary judgment, shouldn’t you consider hiring the firm that has won multiple summary judgment motions in front of the same judge on the same types of cases? If you are investigating a particular law firm, analyzing their client roster could uncover references that the firm might not provide. Let the data drive, or at least influence, the decision.
Measuring judicial tendencies. It used to be impossible to meaningfully account for the differences between state court judges when managing a litigation portfolio. Is this judge bogged down with many cases and therefore slow? Does this judge grant most motions put in front of her, or does she tend to deny everything and push cases to trial? Does this judge show a demonstrable lean towards plaintiffs? Does this judge tend to rule in favor of parties like yours?
All these questions can now be answered in state court litigation analytics platforms. If you know that the judge assigned to the case is among the slowest in the jurisdiction, you can budget accordingly. If you know that the judge rarely grants summary judgment in cases like yours, you can expand the budget and prepare for trial. If you know the judge tends to rule in favor of organizations like yours, you can better project a possible favorable outcome. Measuring the judge is now possible, and general counsel can reap significant benefits armed with such data.
Measuring plaintiffs’ counsel’s tendencies. Just as judges used to be impossible to measure, so too were lawyers a mystery. Does this lawyer take all of his cases to trial or does he settle right away? Does plaintiffs’ counsel file lots of discovery motions and drag out fights, or does this lawyer rarely engage in substantive motion practice? Is this a plaintiffs’ lawyer to fear or one to fight?
State court analytics platforms answer these questions. When you know in advance that the plaintiffs’ counsel on a slip and fall case is really just a demand-letter writer, then you can advance an aggressive settlement posture. If the data shows that opposing counsel actually takes cases to trial and has had some success, maybe even in front of the assigned judge, then you can authorize your defense counsel to engage in more motion practice and advance a realistic settlement posture. If the data shows that plaintiffs’ counsel tends to engage in lots of motion practice (for example, in discovery disputes), then you can allocate more budget in defense of the case. Knowledge of your opponent is helpful in any battle; and more knowledge than ever before is available to the general counsel armed with the right state court litigation analytics platform.
Measuring your competitors. Finally, state court analytics platforms can provide insights into how your competitors deal with their state court litigation. Are you getting sued far more often than a similar competitor in the same jurisdiction? Are you getting results from outside counsel that are worse than your competitors’? Is your competitor getting out of cases on summary judgment while you keep getting stuck in trial? Seeing what competitors’ litigation portfolios look like is a great way to assess risk and your organization’s response to it.
Perhaps you’re getting sued more often because your HR policies are out of date compared to a competitor’s, or perhaps a spike in litigation in one jurisdiction, when other competitors are not seeing a similar spike, reflects a management problem in that region rather than an increase in litigation in that court system. Comparing your organization to others similarly situated is a great way to measure the effectiveness of your operation and that of your outside counsel.
In sum, long gone are the days in which important, litigation-related decisions are made based on anecdote or tradition. New state court litigation analytics platforms make possible significant improvements in legal department decision-making.
By Rick Merrill
Before founding Gavelytics, Rick Merrill spent the better part of a decade as a big law litigator, working primarily on large real estate and other commercial disputes. He received his law degree from the UCLA School of Law, where he was the Senior Articles Editor of the Journal of Law and Technology and a judicial extern for the California Superior Courts.