The essential job of litigators has been unchanged since the dawn of adversarial court proceedings: find relevant facts that could help decide the dispute and meld them with the applicable law. Determine what will persuade a specific fact-finder and craft arguments that will be compelling to that audience, marshaling facts in support. Finally, present those arguments orally, in writing, or both.
At first glance, what does technology have to do with any of that?
Plenty. Smart litigators today are using technology to organize the facts in their documents, analyze the patterns of successful arguments, and present clear, believable stories that convince judges and juries to rule in their favor. That not only allows them to do their work better, faster, and more easily, but it also helps them stand out in a competitive market. Here’s how.
Everything involved in litigation relies on the facts contained within documents, from organizing those facts through creating and drafting persuasive arguments in pleadings, briefs, motions, and oral arguments. Indeed, litigation often labors under the weight—sometimes quite literally—of a wealth of facts within depositions, interrogatories, expert reports, emails and other correspondence, business records, and much more. In the not-so-good old days, rolling trial briefcases and color-coded sticky notes were de rigueur, as was frantic page-flipping in an effort to re-find critical facts.
Digital documents, used correctly, avoid all those struggles. A microscopic thumb drive or, better yet, a secure cloud-based platform can hold all of the documents in a case. Those documents are convenient, accessible, and—best of all—searchable. New documents can be created and checked rapidly, leveraging the litigator’s prior work product to create more accurate and complete drafts more quickly. Those documents can then be organized in any way that makes sense and rapidly reorganized as the theory of the case changes. Digital documents allow quick and efficient onboarding of new trial team members and at the same time, with adequate encryption, are secure from unauthorized access.
As productivity guru David Allen says, “Your mind is for having ideas, not holding them.” Similarly, litigators should be using their intellect, their time, and their experience to analyze and use facts—not to search for them or find them again. If your litigation practice is still primarily paper-based, start your technology upgrade by digitizing your documents and creating an efficient document lifecycle.
Analytics and Artificial Intelligence
While digital documents have been around for years, using artificial intelligence (AI) and analytics to predict litigation outcomes is a much newer technological advance.
Obviously, different arguments work better in different venues, and a case tried to a judge won’t look like the same case presented to a jury. The art of litigation has long been about parsing those nuances. What will be persuasive to this court? What will work against this opponent—and what will fall flat?
Technology offers a shortcut. Big data has enabled access to not only the outcomes of cases and the names of judges, litigants, and counsel but also the full text of court opinions. By using analytics to assess outcomes, costs, case timelines, and the success of various arguments and approaches, litigants can make better decisions based not on hunches and gut feelings but on hard data. In short, AI offers “a way to… make better decisions, create actionable intelligence, and tell your story better.”
As Robert Ambrogi put it, “Litigation is a crapshoot.” But with analytics technology, litigators can analyze the language of previous court opinions and more accurately predict likely outcomes, distilling those arguments and case precedents that the judge finds most persuasive. In Ambrogi’s words, “If you can eliminate some of the chance from litigation [with technology]… why wouldn’t you?”
The best litigators, like the best storytellers, show their audience what happened rather than just telling them. From handmade posters displaying exhibits to PowerPoint presentations and scene reconstruction videos, litigators have long used new technologies to better educate judges and juries, explain potentially confusing facts, clarify timelines and locations, and help fact-finders keep track of dates, names, and figures. While the extent of courtroom technology that a litigator can use depends to some extent on the court’s rules, today’s technology enables litigants to paint a clear picture of their case and their arguments.
The work of litigators may be unchanged over the years, but the way we do that work is advancing by leaps and bounds. At this point, when it comes to success in litigation, technology has plenty to do with it.