Data Analytics And The Importance Of Loser Law

Sometimes it's not all about winning and losing. Hopefully data analytics won't allow us to lose sight of that.

In a fascinating presentation entitled The Malpractice of Hunches at the CALIcon 2018 conference, Fastcase founder Ed Walters discusses the interplay between artificial intelligence, big data and the Code of Professional Responsibility. In one example, Walters considers a scenario where a data analytics program with a 100 percent accuracy rate determines that a particular case ought to be settled — but the lawyer ignores the result, proceeds to trial and loses. Could that lawyer be sued for malpractice?

To many lawyers, Walters’s hypothetical may seem outlandish. Traditionally, lawyers have always been immunized from legal malpractice liability when they’ve exercised reasonable judgment. Thus, if a lawyer exercises judgment based on years of experience and advises a client to take a case to trial notwithstanding the results of a computer algorithm, then liability wouldn’t attach under the current standard of care. But consider a second scenario — one where a lawyer takes a case to trial but failed to research applicable precedent and never realized that it would bar the client’s recovery. Here, most lawyers would agree that the failure to adequately research a case to a client’s detriment constitutes malpractice. So if that’s true, then why shouldn’t overlooking or failing to give due consideration to another piece of information — albeit analytics rather than judicial precedent — similarly trigger a malpractice claim? In short, Walters’s argument has legs.

Still, Walters’s focus on analytics can impact the way that many solo and small firm lawyers practice — and not in a good way. The concern isn’t that solos and smalls are priced out of the analytics market — Walters’s presentation opens with a discussion of low cost and free tools that are affordable even to the smallest sized firms. Instead, a blinders-on view of analytics (which Walters doesn’t endorse but that others may extrapolate) will deter solos and smalls from doing what they’ve always done best: engaging in the practice of loser law.

The term loser law loosely refers to that category of cases that seem DOA from the get-go. In other words, the types of cases that present fact patterns that a data analytics program, based on past precedent and other factors, would recommend that a lawyer not pursue. And as it happens, many of these “loser law” cases — are handled by solos.

I’ve covered a number of loser law cases at MyShingle over the years. Think for example how an algorithm would have thought of small firm lawyer Alan Gura’s representation of a DC-based gun owner challenging the constitutionality of DC gun control laws. Yet Gura pulled out an extraordinary win in D.C. v. Heller, which upended longstanding established precedent permitting states to restrict personal use of handguns and instead, declared the District of Columbia’s stringent handgun laws unconstitutional. Or what of the solo lawyers who put an end to the now-defunct Prenda Law Firm’s disgraceful practice of extorting money from ISP users with any connection to porn sites, knowing that they’d settle to avoid embarrassment. An algorithm would have advised settlement at $2500 a pop to avoid legal costs and likely loss. And for sure, an algorithm would have made mincemeat of the novel arguments advanced by solos to avert banks foreclosing on homeowners who were months behind on the mortgage. Sure, though in hindsight we can celebrate these victories as David’s triumphing over Goliaths, the fact is that any computer algorithm worth its salt would have recommended settling these cases or declining them.

And these are just examples of loser cases where solos prevailed. There are dozens of others where solos and smalls tried and actually did lose — yet advanced the law nonetheless. Heck — check out my record at the DC Circuit and you’ll see a string of losses that nevertheless clarified issues that had gone unaddressed for decades and subsequently emboldened my clients to organize and seek legislative and regulatory reform when they realized that they’d not find relief in the courts.

So here’s the rub for solos and smalls. If an algorithm shows that a case was a dud but an attorney brought it nonetheless, could a court assess fees against the losing party? Will the prospect of malpractice liability for ignoring an algorithm recommendation and bringing a risky lawsuit and losing have a chilling effect on solo and small firm lawyers pushing the envelope? As analytics become more accessible, these are questions that we can’t ignore.

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Don’t get me wrong — I am not suggesting that lawyers ignore analytics or that big data is useless. Any information — whether it’s judicial precedent or a stockpile of data — are valuable because they can aid lawyers in making critical strategic decisions for clients. But at the same time, we can’t forget that the law isn’t binary like computer code. Cases aren’t only about winning and losing. There’s an inherent value to pushing the envelope and advancing new legal theories or eliminating uncertainty by definitely resolving what won’t work. There’s an inherent value to going to the mat for clients even under the most hopeless set of facts if justice so requires. It’s solos and smalls who often stand on the front lines in using the justice system to change the law and stand up for those desperate clients who have no other options. If data analytics makes solos and smalls less inclined to take these types of cases due to fear of liability, then we all lose out.


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 practicesocial 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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