One of the primary responsibilities of a law firm’s legal support staff is to assist in preparing cases for trial. This means helping the litigators conduct thorough discovery and learning as much as possible about each potential witness and all the evidence they might be expected to introduce.
Another critical component to preparation is to learn as much as possible about any other individuals involved in the case, such as opposing counsel, and especially the judge, arbitrator or mediator hearing the case. What are their strengths, weaknesses, tendencies, preferences, and points of disfavor? Basically, what arguments and strategies will likely work, and which will not.
To this end, there is a compelling case for a new and fast-evolving line of products designed to offer trial attorneys a competitive advantage, now and in the future. Welcome to the world of litigation analytics, which offers litigators the technology to collect all the reported and relevant decisions of a particular jurist, and then tailor a litigation strategy accordingly.
The challenge for the legal support professional is that attorneys must accept and integrate new technology, which means not only a change in the way cases are prepared, but also learning to use a new tool. Attorneys are not always comfortable with new technology and may resist putting in the time it takes to train in these new products. While the value inherent in litigation analytics products is quickly apparent, the key to a successful integration strategy is to slowly and properly maintain the attorneys’ interest and enthusiasm by creating a supportive learning environment.
Three Use Cases
There are three main use cases for support staff to emphasize to litigators when seeking to introduce an analytics platform.
They help us win cases
Analytics offer the ability to come to court equipped with granular information about rulings. For example, some analytics offer real and detailed evidence of a judge’s prior rulings that can be used to support or contradict a particular legal argument. In addition to helping develop a legal strategy in advance of trial based on a judge’s identifiable predispositions and inclinations, using analytics for pre-trial preparation also offers the ability to prepare in advance for arguments made at the bar of the court during the course of a trial. Analytics offer the ability to come to court equipped with granular information about rulings that can be expected from a particular judge.
Anticipate Staffing and Litigation Costs
Managing client expectations and cost predictability in litigation is critical to maintaining a sustainable and lasting client relationship. The use of analytics opens the door to greater transparency and the opportunity to offer meaningful options for clients. This is because analytics helps manage clients’ expectations by quantifying how long a case will take to resolve, how it should be staffed, and the probability of success of filing or defending certain pre-trial motions. Moreover, because analytics helps anticipate costs and staffing expectations, this helps the law firm offer viable and value-based alternative fee agreements that both client and counsel will appreciate.
Litigation analytics is a maturing technology that is developing quickly and is being incorporated in firms of all sizes. Quite simply, it is a competitive disadvantage not to use analytics, especially when it is likely that the technology is being employed by opposing counsel. The reality is, it is expected that most firms engaged in meaningful litigation to be fully invested in analytics over the next five years. The sooner that a protocol of using this technology is incorporated in a law firm’s culture, the better. Analytics is a tool, and like any sophisticated tool, it needs to be learned and implemented with care. Waiting to initiate this process will not save time or money.
There are a number of different analytics products on the market. Before advocating for the purchase of any particular one, it is highly advisable to engage in an initial conversation with a provider that seeks to identify how their product collects, organizes and normalizes their data. Essentially, every analytics product is counting data and organizing the results into a report that gives meaning to the numbers. It is critical, therefore, to understand what specific information is (and is not) being considered by the software, so a report can be fully and properly evaluated.
The reports generated by every analytics program on the market produce pretty charts and pictures, which seem brilliant at first blush. Transparency is the key, however. The provider must be able to fully demonstrate what their software is counting and what data sets are included in their reports for you to evaluate how effective that particular metric is going to be in understanding the true landscape.
The best way to introduce analytics products to litigators is to show them how the product works in an actual case. Start with a single product and identify a practice group leader that will likely appreciate the value of the tool. One of the practice areas that has seen broad acceptance and immediate use of analytics is labor and employment, followed by construction litigation, intellectual property, and corporate deal analytics. What follows is usually a domino effect once other litigators see the value created in these groups—others gain interest and acceptance.
The best initial approach is to choose an active case in the target group and run an analytics report profiling the judge assigned to the case. Show the report to a practice leader and let them see how this judge rules in all cases, but then drill down to demonstrate how this judge rules in cases like theirs, specifically. That is the wow moment for the technology, where you give a seasoned litigator the opportunity to see something they haven’t seen before that offers a real competitive advantage. Once that light goes on, this individual will share the experience and become a champion for a larger group within the firm.
The key to gaining traction with other attorneys in the firm is to avoid overwhelming them. Start with one analytics program and show them the reports it is able to generate. This is usually enough to pique their curiosity and generate interest in learning more about how to use the program, what else it can do, and other complementary programs.
It is critical, however, that this integration is done in measured steps, starting with a less complicated program. Most attorneys want every piece of software to operate like Google, where an inquiry is typed into a blank field and an answer is provided. While many analytics programs are very intuitive, they are also complex. The solution is to move slowly and deliberately. Make sure the attorneys understand each step fully before moving on to another level of the program.
To achieve integration of analytics into the litigation culture it is vital for firm leadership to commit to messaging the value of the tool. By staying on message and repeating the importance of the value created by analytics, this increases the likelihood that an attorney will hear the message at a time of need. Full product integration often takes up to three years to achieve, so it is really important to remain committed to the message while being as supportive and patient as possible.
To this end, many firms will even offer their attorneys different but similar analytics products to accommodate the personal preference of the individual users. Management at these firms is so committed to the importance of incorporating litigation analytics that they make it as easy as possible to accommodate the attorney’s comfort level with a particular program.
Technology is only effective if it is being used. To get maximum value from a software investment, the firm needs to understand how attorneys are using a particular analytics product. Many firms employ the use of ResearchMonitor to track their technology investments and there are two metrics that should be considered. The first is that the attorneys demonstrate a slow and steady increase in overall use. A proper measure of success is that more and more attorneys and staff accessing the tool over time.
The second metric to look for is repeat usage. It is desirable to see an attorney use an analytics program once and then return to the software on a consistent basis. This is the clearest indication that when the attorney used the product the first time, they found something valuable, leading to subsequent usage, showing a desire to collect additional information and push their own research, knowledge, practice skills forward. If both of these metrics produce positive results, it is safe to say that your firm has experienced a successful launch.
There are many different analytics products on the market and they do not all address the same needs. In fact, most are complementary, which supports the strategy of starting your firm with an intuitive platform and expanding as use and comfort dictate.
The law is ever-changing as is the technology that attorneys use to practice. If analytics teaches us anything, it is be prepared.