Everything in the law is about precedent. Has this happened before? What can I infer from previous case outcomes? Can I persuade a judge to make a certain ruling by proving similar decisions have been made in the past? We legal professionals are guided by a set of established rules and principles - many of which have been around for decades, if not longer.
Understandably, many have argued that this culture of looking backward is somehow antithetical to innovation in the legal industry. A lot has been written to support this view. But I want to offer a counter-argument, and suggest that it is actually precedent itself which has the power to propel the legal world forward; that is, if we look at it the right way: as data.
With precedent comes data: millions of decisions, rulings, and judgements; mountains of violations, evidence, facts, and claims. Court dockets, contracts, agreements, briefs, and witness testimonies. What if we could harness that data to transform the legal profession and the justice system as we know it? What if lawyers could spend their time not on making artful predictions about their cases, but rather using data to make better, more informed litigation decisions?
The data-for-justice revolution is here
At the end of the day, data is a commodity like gold. Without the right treatment, it is completely worthless, but under certain conditions, it is invaluable. In order to make legal data truly effective, it must be properly collected, stored, catalogued, and organized. Most importantly, it must be made accessible to members of the justice community.
Data democratization is the process of making data accessible to everyone, regardless of their technological know-how, so they can make data-driven decisions. Essentially, democratization is about removing the gatekeepers and bottlenecks standing in the way of everyday people's ability to understand and comfortably use data, and then creating tools and systems to make it useful in a practical sense. The goal is to allow non-specialists and average end-users to gather and analyze data.
In Tomorrow's Lawyers, noted Futurist Richard Susskind implores attorneys to take a step back and look at the wider industry, writing that many senior legal practitioners, when contemplating the future of their business, rarely ask what value or benefits clients really seek when they instruct their lawyers. Many legal practitioners rely on human-generated predictions, making decisions on instinct or experience. Why should this be the case in a world with unprecedented access to information?
Whether we like it or not, humans have real cognitive limitations and biases. Even the most seasoned lawyers who are able to draw upon decades of practice are limited in the scope of data available to them. As Daniel Martin Katz points out: "When answering the questions, 'Do I have a case?' an individual's particular understanding of likelihood might be driven by personal observations that are anecdotal, censored, or otherwise not indicative of the true distribution of outcomes. This is particularly problematic for rare events. The best way to remedy these and other related issues is to observe a large-scale and truly representative selection of the relevant event data."
The new rainmakers
Although the legal industry has been somewhat slow to embrace change, the data revolution is already starting to have a major influence on the profession. Some of the most common applications I've noticed include using predictive data science to inform settlement negotiations and combining machine learning algorithms that study past cases to find new clients and matters more efficiently.
As the democratization of legal data gains momentum, we are also starting to see the emergence of at least two new professions: legal data engineers and legal data business development specialists. The former build the machines and creates the legal data architecture, ensuring it is properly managed and continues to meet the industry's needs. They create and use software to analyze case law and legislation at-scale, source relevant evidence from real-world data, and use data on litigation outcomes to accurately predict their firm's chances of winning cases.
Legal data business development specialists, on the other hand, are quickly becoming the next generation of "rainmakers" for their firms. They are replacing the relationship-based model of the past with inbound and outbound marketing strategies, and proving their firms competences by analyzing and comparing case outcomes. They are also using data to spot emerging problems for their clients that can be solved through litigation. Relationships are still important, of course, but with clients becoming more data-driven in their acquisition of legal services, litigators must keep up.
Data-driven litigation
This doesn't mean that every lawyer must become a data analyst. Being "data-driven" is just an evidence-based way of perceiving the world. Once lawyers have access to the right data tools, they can make better decisions for their clients and, in doing so, accelerate their practice and promote real justice. Litigators already have one source of truth - the law and its application in precedent. But looking at precedent as legal data can enable litigators to determine, more effectively, whether their own underlying assumptions about cases are correct.
Law firms seeking to incorporate data into their practice should first of all stop and consider what they actually want. The only reason to incorporate data into your practice should be a clear business need. Don't do it because it looks good or because it's what everyone else is doing. think it terms of the strengths, weaknesses, opportunities, and threats that your business faces. Once you have found the biggest threats to your firm, do some research to find out whether data applications could help solve your problem. Start with thinking about the right keywords. After you have a clear map of existing products, evaluate them on your own. Speak to experts you know, as well as colleagues who might have experience with your problem. Now is the time to get some price quotes. Make sure you explain your problem precisely to the account executive. The more ambiguous you are about your goals, the les likely the product is to fulfill your needs.
Of course, there will always be a need to highly skilled litigators that use their legal knowledge, expertise, advocacy, and empathy to litigate cases. Still, I think the most competitive firms of the future will be those that harness data and find better tools to meet their client's needs.-
This article originally appeared in Forbes in September 2022
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