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By Angela Chmielewski | LexisNexis Practice Area Specialist
In a recent article published in this space, we pointed to the findings of the 2020 Legal Analytics Study, conducted by ALM Intelligence in collaboration with LexisNexis, which documented a “tipping point in the adoption of legal analytics among large law firm professionals.” The study found that 70% of law firms are now using legal analytics and that 90% of legal professionals agree that using legal analytics makes them a “better, more efficient and effective legal practitioner.”
A 2021 legal analytics survey by my colleagues at Lex Machina drilled down into the most important factors behind legal analytics adoption and found both users and non-users of analytics tools agreed on the number-one driver: better litigation outcomes.
An interactive chart created by Law360 Pulse illustrates that 73% of law firms that use legal analytics adopted them because of their desire to achieve more successful litigation outcomes, while nearly half of non-users believe that other firms adopt analytics for that reason.
It is widely understood that data analytics are powerful tools relied upon by corporate executives in every industry, but many litigators are still learning about their application to a discipline that is rooted in old-fashioned skills such as reason, analysis and persuasion. The reality is that legal analytics do not introduce a new way to litigate cases; they simply uncover and surface insights that can be placed in the hands of a skilled litigator to take that reason, analysis and persuasion to the next level.
Here are five specific ways that legal analytics can help litigators craft winning strategies:
Speak your judge’s language
A key to making the most persuasive argument possible in every brief, pleading or motion is to use the language that your judge wants to hear. Legal analytics go beyond traditional legal research by mining each judge’s authored case opinions and rulings to uncover the language and citations they rely on most often. When you know in advance what your judge wants to hear, you can win more arguments with proven persuasive authority tailored to that judge’s language.
Study the opposing counsel
The ability to anticipate your opposing counsel’s next move is a major advantage for experienced litigators. Analytics can serve as a secret weapon for litigators of all skill levels by surfacing key insights about how your opposing counsel is likely to behave, based on their track record in similar cases. For example, you can obtain details on an attorney’s areas of expertise, discover if they have handled similar lawsuits in the past and how their strategies played out, write more persuasive arguments that are tailored to neutralize their usual arguments, and even learn how they are most likely to respond to your motion.
Know an expert’s strengths and weaknesses
The persuasiveness of each side’s respective expert witnesses can be a crucial factor in a litigation outcome. Data reports can help litigators persuade a judge to admit your expert’s testimony — or impeach your opponent’s expert witness — by delivering insights that allow you to track an expert’s CV for any inconsistencies, review past testimonial history and reports, and review previous challenges. Analytics can pinpoint why your judge admitted or excluded an expert’s testimony by reviewing their reasoning, and know the specific language and cases you need to persuade the judge to admit your expert or exclude your opponent’s expert.
Uncover the corporate litigants’ risks
Every corporate litigant has their own unique risk profile that is shaped by their financial health and growth opportunities. Understanding and anticipating these risks for both your client and your opponent’s client can provide litigators with a more fulsome picture of what might represent a “successful outcome” for each side. Analytics can bring together litigation, financial and news information so you can uncover the current landscape in which the companies are operating and gain valuable intelligence about what might constitute reasonable settlement terms.
Find the right court
Arguing your case in the right court can be one key to securing the best possible outcome for your client. Legal analytics can bring to light the language a specific court cites most often. This enables litigators to: (1) Find a court with precedent that is most favorable to your arguments and avoid arguments that court has rejected in the past; (2) See how many cases similar to yours have been tried in a specific court and review how the court ruled on those cases; and (3) Determine whether a change of venue is in order and, should you decide to proceed, identify compelling language you can use to support your motion.
As the legal industry’s first and only language analytics solution, Context Attorney Analytics tracks records of more than 1 million attorneys and connects their argument activity with actual written judicial opinions. Receive instant 7-day access to Context by adding a free trial to your existing account on Lexis or Lexis+.