The suspension of jury trials during the COVID-19 pandemic highlighted the strategic role played by the unknowable jury. Like the Sword of Damocles, the jury acts as a trump card, pushing plaintiffs and defendants to reach for more certain (albeit less advantageous) settlement options. But things are changing.
Justice looks different inside a global pandemic. It starts. It stops. And then it starts again. Within this rhythm, the U.S. District Court for the Southern District of New York has held more than 100 jury trials since the start of the pandemic, relying on an aggressive, multi-pronged safety protocol. This effort is partly technological, with non-contact digital thermometers authenticating the health of all court visitors. It’s also architectural. Attorneys and their clients communicate through telephonic devices that allow them to whisper to each other from a distance. Attorneys and witnesses address the court from Plexiglas booths, a setup that enables them to remove their masks and show their faces.
But it’s not just the architecture of justice that has changed. So have its tactics. Matt Haicken, an attorney based in New York, recounts a recent case. In 2020, his client, an elderly woman, tripped on a piece of wood while walking along a closed access road outside Manhattan’s Stuyvesant Town. She took a hard fall on the concrete and severely damaged her wrist. The accident was captured by a high-definition surveillance camera, which also showed that the piece of wood was left near the median by a construction crew member. Legally, there’s nothing particularly noteworthy about the case. Still, by March 2021, Haicken, who had filed a lawsuit on the woman’s behalf six months prior, had made little headway in his negotiations with the contractor and its insurance company. This was unusual. “[I]f it’s on video, they usually make some effort to settle early,” he says. “But they’re not returning my calls.”
The problem? He lost his leverage. The closure of courthouses and the suspension of jury trials gave the defendants little incentive to settle with the plaintiff. The action lingered indefinitely.
Case Law to Case Outcomes
Outcome prediction is an important part of practicing law. Clients expect their attorneys to provide them with accurate assessments of the potential consequences of any major legal decision. These assessments, which typically take place at the beginning of the litigation process, allow clients to strategize how they would like to navigate through a specific legal matter.
Litigators have always developed their own rudimentary tools for grappling with the unknown. In general, they assess the viability of a pending legal action by looking to the past. They know that the details of a past case can provide invaluable insight into how they should position similar cases in the future. The problem is that this guidance has been impossible to access, especially for attorneys at the state trial court level. Thankfully, a market of legal analytics platforms have emerged to solve this problem, harnessing the rudimentary tools of litigators and expanding their capabilities with artificial intelligence and machine learning.
Companies like Trellis Research, Ravel Law and Premonition have completely remapped the ways in which attorneys conduct legal research, helping attorneys generate qualitative and quantitative insights into how their case is likely to unfold. These platforms started by following the logics of conventional research. They provided their users with the tools needed to conduct element-focused analyses. In other words, users were positioned to better understand how likely their action would survive a motion to dismiss or a motion for summary judgment. While useful, this kind of analysis tells us little about how a jury will respond to a specific type of action. Recognizing this limitation, legal analytics platforms have started integrating verdict data into their systems, amending their archives of case law, legal petitions, and judicial rulings to also include information related to outcomes and settlement awards, particularly for cases where judicial officers never issued formal opinions.
A Secret Weapon
“We haven’t been able to get real money on cases in the past year because the trial is like the sword of Damocles,” says Matt Haicken. “It’s our weapon.” As one of the top causes of unintentional injuries, slips and falls can result in astronomical expenses, ranging from medical bills to lost wages. Every slip and fall case is unique. Some will settle at the onset of litigation. Some will make it all the way to trial. And others will settle days—maybe even hours—before trial begins. With verdict data, attorneys can begin to map the trajectories of different settlement strategies, identifying the range of outcomes for each decision.
We can take a closer look at the Sword of Damocles by considering a series of ice-related slip and fall cases in New York. In 2015, a plaintiff filed a complaint in the Bronx County Supreme Court alleging that the tenant and the owner of a home ignored their sidewalk’s icy conditions, an act of negligence that caused the plaintiff’s slip and fall injury. The plaintiff, who rejected the defendants’ $250,000 settlement offer, took a chance on a jury, all six of whom approved a $1,535,000 verdict. Now, compare this case to a one that took place in the Queens County Supreme Court that same year. In that case, a plaintiff alleged that a defendant’s sidewalk wasn’t adequately shoveled after a recent snowstorm. Although the case made it to trial, the parties negotiated a $200,000 settlement after the defense’s presentation of its liability witnesses.
All of this information is readily available through a simple verdict search. But what does it really tell us? What can we learn by tracking case outcomes? To start, we can begin to identify the monetary amounts at stake in the settlement process. We can quickly get a feel for the settlement amounts property owners and their insurance providers are willing to offer in order to swiftly resolve ice-related slip and fall cases. We can then compare these figures with the amounts awarded by juries, backing any possible counter offers with hard data about a case’s potential value. But we can also do something else. We can begin to gather key pieces of intel about our opposing counsel and their litigation behavior. For example, it only takes a few clicks to learn that the defense attorney from our Queens County case has a documented track record of negotiating personal injury settlements during the final stages of trial preparation and trial presentation. This is key information to know when deciding whether or not to accept an initial settlement offer.
The Return of the Jury
The suspension of jury trials during the COVID-19 pandemic highlighted the strategic role played by the unknowable jury. Like the Sword of Damocles, the jury acts as a trump card, pushing plaintiffs and defendants to reach for more certain (albeit less advantageous) settlement options. But things are changing. AI-backed legal analytics is bringing new levels of transparency to the jury trial process. While we may never know with any degree of absolute certainty how a case will unfold in front of a jury box, the seamless integration of verdict data with the archives of state trial court records is already uncovering the trends that hide behind the unknown. We are learning more and more about our juries—our Sword of Damocles—sorting through massive quantities of information at the most granular levels. What are you finding out?
Nicole Clark is CEO and co-founder of Trellis Research, an AI-powered legal research and analytics platform.