Small Law Firms

Proctologist v. Legal Technologist: Who Would You Rather Expose Your Briefs?

Your briefs are out there, what do they say about you?

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Few people enjoy visits to the proctologist, which can be an embarrassing and uncomfortable experience. But after Judicata CEO Itai Gurari’s recent public probe of the error-ridden briefs filed by two prominent California Biglaw firms, the attorneys responsible probably now wish that their briefs had been exposed by a proctologist rather than a legal technologist.

By way of background, Judicata is a legal research company that’s developed a powerful tool to scope out weaknesses in a legal brief. Judicata doesn’t just flag typos and grammatical errors; it will also catch inaccurate quotes, outdated caselaw, and the failure to address key arguments. Judicata has several use cases. Most obviously, firms can use Judicata to check documents and correct mistakes or improve analysis before filing the documents at the court. Judicata can also help train new associates by highlighting weaknesses that less experienced attorneys might not recognize.

But just as firms can use Judicata for quality-control in-house, courts and clients can also use Judicata to evaluate the quality of other lawyers’ briefs. And that’s what Gurari did using Judicata. He analyzed briefs filed by two name brand Biglaw firms in a high-profile case before the California Supreme Court, which shockingly were rife with errors — some by both parties, but the majority by the firm that lost. These included:

  • Numerous citation errors and intentional misquotations such as the use of words in the quoted portion that differed from the actual quote;
  • Failure to confront and distinguish problematic precedent that favored the opposing side (and that the court ultimately relied on in its ruling);
  • Citing a case that was “not citable” due to a California court order that automatically depublishes California Court of Appeals decisions once the California Supreme Court grants review.

Not surprisingly, the firm that committed the more egregious errors lost the case. Although Gurari argues that even a few typos reflect carelessness that could cause a litigant to lose credibility with the court, here, the mistakes identified — such as citing outdated precedent or failing to address a key case — are not just superficial, but substantive.

Just as technological advancements in the medical field enable doctors to explore and understand parts of a patient, including individual cells and DNA, that are unseen by the human eye, legal technology offers a similar entry to parts unknown. True, briefs have been available in the public record for at least a century, but have remained shrouded in a cloak of practical obscurity. By contrast, today’s briefs are readily available on the public docket (at least in federal courts) and nearly every research platform on the market allows users to search for briefs or includes briefs in search results. And with tools like Judicata, the contents of those briefs are easily dissected. In just a few more years, we may see lawyers’ grades on briefs displayed in their Chambers profiles or Avvo ratings, or the advent of services that churn the data gleaned from briefs to predict what kinds of errors have the most impact and which firms are most prone to them.

Under Judicata’s bright spotlight, the cloak of practical obscurity that once shielded most briefs from seeing the light of day will fall away as easily as the flimsy paper gowns that patients wear for a doctor’s visit. For that reason, lawyers must take care to ensure that their briefs are clean in case they’re caught with their pants down.

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Carolyn ElefantCarolyn Elefant has been blogging about solo and small firm practice at MyShingle.comsince 2002 and operated her firm, the Law Offices of Carolyn Elefant PLLC, even longer than that. She’s also authored a bunch of books on topics like starting a law practice, social media, and 21st century lawyer representation agreements (affiliate links). If you’re really that interested in learning more about Carolyn, just Google her. The Internet never lies, right? You can contact Carolyn by email at elefant@myshingle.comor follow her on Twitter at @carolynelefant.

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