According to a recent article in Corporate Counsel magazine, more legal departments are now experimenting with alternative fee arrangements (AFAs) in litigation (29%) than in other practice areas. However, litigation is not at all where the greatest impact of AFAs are going to be felt for many in-house legal departments and law firms.The Brad Pitt film, Moneyball, portrays Billy Beane as the baseball team manager of the Oakland A’s struggling against accepted dogma in player selection. Beane’s insight was to use readily available data to pick his players. This flew in the face of conventional wisdom for choosing drafts by gut feel, pitching and batting style, even factors such as their demeanor off the field and the attractiveness of their wives or girlfriends. Using available data that others neglected to analyze, the Oakland A’s put together a roster of players believed to be lacking in talent, past their prime or unusable. Not only did the team prove itself by results, they were assembled with one of the lowest budgets in the sport.In a similar vein, today the choice of a litigator is much like the bad old days of baseball player selection. Many will pick their lawyer based on the recommendation of a colleague, an online review, because they went to a particular law school, have nice offices, work for a prestigious firm, or perhaps are people recognized by their peers as supposedly being “the best.”So, if these generally accepted methods for selecting a trial attorney aren’t the most effective, what is?Today there is a new Artificial Intelligence-based system that is actually mining courthouse websites for litigation data, reading hundreds of thousands of cases, and analyzing them into an accessible database. That system, using the application of AI and Big Data, can now help clients identify precisely which attorneys usually “win” before which judges, handling which kinds of cases. Wins and losses have traditionally not been tracked in law, perhaps being viewed by the profession as a bit tawdry. Most attorneys don’t know their own statistics, however, nor do their firms. The only thing that gets tracked in law is hours and fees.
The system downloads new cases in real time, as they are filed. It analyzes them, creates complex tables, mining overall win rates, and differences from judge to judge looking for specialists in varying case types. Most of all, it looks for outliers, litigators with long strings of unbroken wins before particular judges.
In a discussion I had with Toby Unwin, inventor and co-founder of Miami-based Premonition Analytics, he told me, “The only item that affects the likely outcome of a case is the attorney’s prior win rate, preferably for that case type before that judge.”
Having downloaded hundreds of thousands of cases, Premonition set about the huge task of teaching the AI system to read the cases. Like a child, the system learned slowly at first, but rapidly gained in speed and accuracy. The system downloads new cases in real time, as they are filed. It analyzes them, creates complex tables, mining overall win rates, and differences from judge to judge looking for specialists in varying case types. Most of all, it looks for outliers, litigators with long strings of unbroken wins before particular judges.
The co-founders recounted one story of a paralysis case on the verge of trial for a very nervous insurance company. Premonition downloaded 15,000 cases—three-years-worth of civil actions in a Reno, Nevada, courthouse. The system found one attorney with 22 straight wins before the judge—the next person on the list had seven wins. A bit of checking revealed the lawyer was actually a criminal defense specialist who operated out of a strip mall. The lawyer had little reason to be before a civil judge, let alone so often and with such a stratospheric win rate. Premonition advised he be hired as co- counsel. The case settled within weeks. Premonition claims such outliers are far from rare. Their website, shows an example of an attorney with 32 straight wins before a judge in Orange County, Florida. The attorney, an associate at a major national law firm, has a higher win rate than the partners at his office.
And ‘win rates’ aren’t the only metric Premonition tracks. Case duration is vitally important. “Many attorneys are notorious clock-runners. They’ve got away with it, because there has been no transparency,” Unwin says. “Clients will often focus on an attorneys’ hourly rate, but you need to look at your total spend: hourly rate x length of case losses.” Over a portfolio of cases, these savings can be significant.
It’s no secret that technology is having a significant impact of litigation, with the advent of cloud-based tools and collaborative workspaces. Now with the advent of AI and Big Data, this is but one new development that could be a real game-changer.
Patrick J. McKenna is an internationally recognized author, lecturer, strategist and seasoned advisor to the leaders of premier law firms. He is the author of eight books, most notably his international best seller, “First Among Equals”, and most recently, “Serving at the Pleasure of My Partners”. His consulting expertise was acknowledged in 2008 when he was identified through independent research compiled and published by Lawdragon as “one of the most trusted names in legal consulting” and his three decades of experience led to his being the subject of a Harvard Law School Case Study entitled Innovations In Legal Consulting (2011). He can be reached at [email protected].
A Game-Changing Litigation Technology Trend was last modified: August 26th, 2019 by Premonition
