“These days everyone has analytics in baseball,” begins Josh Becker, former Chairman of Lex Machina. It might seem strange, this use of a sports analogy in a discussion of legal data analytics. But the use of baseball metaphors in the law is nothing new. In many jurisdictions, for example, baseball sets the pace of criminal sentencing, where a three-strikes mindset levies significantly harsh prison terms for repeat offenders.
Becker, however, is referring to a metaphor increasingly deployed by civil litigators—Moneyball. It’s a concept that derives from a book by Michael Lewis, a book that recounts the success with which a budget-strapped baseball team from California harnessed the power of evidence-based data analytics to assemble a competitive lineup.
Most civil litigators play some form of Moneyball, blending their institutional knowledge with raw litigation data in order to win cases and court clients. I would like to extend these baseball metaphors one step further, taking them all the way to the beginning of the litigation process. That is, to the perfect pitch.
Scouting for Data
Legal professionals produce rich streams of data every single day. At the federal level, this data resides on PACER, a web portal created in the late 1990s that grants users access to documents related to cases in federal bankruptcy, district, and appellate courts. The situation, however, is more complicated for state trial courts, as each county in each state authors its own procedures for collecting, cataloging, and publishing court documents. Luckily, legal tech platforms have found ways to manage these challenges at the state trial court level, offering services that allow attorneys to learn the ins and outs of the people involved in each case. This treasure trove of information is currently being mined by civil litigators, by individuals committed to uncovering the hidden patterns nestled deep within state trial court records. And, until recently, these litigators needed to be committed. Kirk Jenkins, Chair of the Appellate Task Force at Sedgwick, describes the hours he spent “hand-coding his own databases of thousands of California and Illinois Supreme Court decisions.” But for Jenkins and others, the insights were worth it. They provided invaluable glimpses into how a case would likely unfold, helping litigators predict the behaviors and activities of judges, lawyers, and parties.
Things are much simpler now. These days, legal tech providers do all the coding for you, aggregating information in ways that allow users to search through—and collect information about—virtually any variable of their choosing. All of this has radically reconfigured how attorneys conduct research on their clients, on their competitors, and on themselves.
Preparing to Pitch
It all starts with an alert. Christian Mammen, a partner at Hogan Lovells, describes a practice many commercial litigators use to tap into new business opportunities. Legal tech platforms enable litigators to register for alerts that notify them whenever a new case has been filed against a company in their field of expertise. As soon as one of these alerts ring, a deluge of calls floods the in-house legal teams of the affected companies. These calls often contain pitches, snippets of advice on venue and strategy as well as commitments to provide the best possible defense.
But what does it mean to tell a prospective client that your law firm is the best law firm?
How can you convince a potential client that you have the experience, expertise, and skills needed to successfully handle their legal matters in a cost-effective manner?
This hasn’t always been easy.
There is no simple way for an attorney to quantify their relevant experience. Legal analytics, however, provides a place to start, helping lawyers pack their pitches with more than just vague references to ‘intuition’ or ‘experience’. How many times has a law firm handled certain types of cases? How often do they settle right away? How long do their cases typically last?
All these questions can be answered with exact numbers, precise figures that have been culled from thousands of data points from court dockets, documents, and rulings.
The Perfect Pitch
These days, a typical pitch deck is filled with charts and graphs, easy-to-grasp visualizations that demonstrate how law firms compare with their competitors. This is what prospective clients want. They want metrics, hard data that illustrate how one law firm compares to another.
According to Douglas Lancet, Managing Director of Marketing and Business Development at Robins Kaplan, a successful pitch differentiates you from the competition. Clients want to see that you have handled “similar cases with the same allegations involving the same technology or product [or] similar underlying facts.” Amy Wisinki, a Senior Manager at Winston & Strawn, echoes these sentiments, recommending that attorneys perform the same kind of analysis on their potential opposition. “How much patent litigation have they faced? And how has it been checking out? Are they normally the plaintiff?”
She continues, stating that “[i]t would be particularly interesting if I saw that one of them was a plaintiff in 80 cases and the other one had 1 and could see that one of them spends a lot more time asserting their portfolio than the other one.”
After collecting these kinds of data points, law firms can then develop their own law firm analytics, constructing side-by-side comparisons of law firms in terms of win rates and case timing as well as litigation history and award amounts. This information, when made available to prospective clients, can form the basis of a proposed defense strategy.
“Clients tell us over and over again that they really like it when we give them free legal advice,” explains Lancet. “So it’s a great idea to include a summary of the allegations in the complaint and a proposed defense strategy to give them a sense of how the case is likely to proceed and how are you going to handle it.”
Landing a Catch
At the end of the day, a prospective client wants to know that you understand their world and their industry, that your insights align with what they have experienced, explains Howard Kravitz, Director of Global Business Development and Marketing at Debevoise & Plimpton. AI-powered legal analytics is one way to demonstrate this understanding, opening the field for attorneys to play their own version of Moneyball.
Attorneys can now point to quantitative data, to hard numbers that describe reality in increasingly granular ways. This is the kind of transparency clients want. They want figures that can help them better evaluate the risks associated with different litigation strategies. They want to know how your law firm keeps score.
What will you tell them?
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