The Changing Face of Litigation

No matter how brilliantly you present a motion, you never know how the dice will land. But what if you could predict the outcome of each roll with a higher degree of certainty? Not only would you eliminate some of the chance from litigation, but you’d more likely be successful overall.

In a nutshell, that is the premise of a growing market of legal technology tools devoted to litigation analytics. These tools take data derived from the courts and apply analytics to make predictions about likely outcomes.

The latest such tool was unveiled this week, with the launch of Context from LexisNexis. Building on a product first launched by Ravel Law before LexisNexis acquired it, Context does something unique from any other analytics product — it analyzes the language of a judge’s opinions to identify the cases and arguments that judge finds persuasive.

Specifically, Context gives you an overview of how a judge has ruled in the past on your type of motion. It covers 100 different motion types. It also tells you the judges, cases and text the judge most commonly relies on in making those rulings. (It also provides analytics on some 380,000 expert witnesses.)

Say you are filing a motion for summary judgment. Using Context, you could look up the judge and determine the rate at which that judge grants or denies summary judgment. You could see all the specific cases in which the judge made those rulings. Then, going deeper, you could see the opinions that the judge most frequently cites in summary judgment cases, and even the specific text from those opinions that the judge most frequently relies on.

With this information, you eliminate some of the chance. You know before you file whether the judge favors or disfavors such motions. You know the precedents the judge finds persuasive. You know the specific citations the judge relies on. By tailoring your memorandum to fit this knowledge — to fit the judge, really — you give yourself (and your client) the edge.

Context is unique for its analysis of text. But it is by no means unique in occupying the space of litigation analytics. The market for such products is growing, with most focused on analytics of data derived from court dockets. Under the same roof as Context lives another litigation analytics pioneer, Lex Machina, now also owned by LexisNexis and grouped under the umbrella of Lexis Analytics.

Not to be outdone, Westlaw Edge, the next-generation legal research platform that Thomson Reuters unveiled in July, introduced litigation analytics within Westlaw. Like Lex Machina’s products, these are docket-based analytics that provide insights on judges, courts, attorneys, and law firms. Westlaw hit the ground running with this product, offering more data and covering more practice areas from both federal and state courts than any other product on the market.

Other providers of docket-based litigation analytics on the market include:

  • Bloomberg Law’s Litigation Analytics, providing analytics on companies (as parties to litigation), law firms, attorneys, and judges. Attorney analytics was the most recent addition to Bloomberg’s analytics suite, providing representation data on more than 100,000 attorneys at more than 750 law firms. Bloomberg Law also provides analytics for health care fraud, labor and employment, and SEC administrative law judges.
  • Fastcase, which last year acquired Docket Alarm, the docket tracking and analytics platform, and then launched Analytics Workbench, which allows legal professionals to build their own bespoke litigation analytics across any court, practice area, or litigation event.
  • Gavelytics, which applies analytics and artificial intelligence to docket data to provide insights about judges’ propensities, workloads, and leanings. It recently announced a partnership with CourtCall by which attorneys who are scheduled to appear before a judge via CourtCall’s remote-appearance technology will be able to obtain analytics on that judge via Gavelytics in advance of the appearance.
  • Premonition, which provides analytics on lawyer and law firm performance before specific judges and courts. Premonition claims to have the world’s largest litigation database, covering courts from a number of countries and jurisdictions.

That pretty well sums it up. If you can eliminate some of the chance from litigation if you can bring a higher level of certainty to litigation, why wouldn’t you? Indeed, you might even ask yourself, “Is it malpractice not to use analytics?”