At every inflection point along the life cycle of a lawsuit, attorneys have to make decisions. Plaintiff or defendant, in-house or outside counsel, deeply consequential choices abound: where do we file this case? How do we respond to this particular motion? Should we seek settlement? What can we tell the client about the ultimate expense?

Until very recently, attorneys made such decisions by drawing on their own firsthand experience as well as conventional or received wisdom. Today, there’s a revolution underway in how sophisticated litigators decide critical questions of strategy and tactics. The legal profession, belatedly, is entering its data-driven phase. With the advent of litigation analytics, attorneys can finally quantify—at nearly every turn—the prospects of success or the scope of risk for almost every option during the course of case.

In addition to informing case strategy, litigation analytics empowers lawyers to excel on many other fronts, including managing client expectations, accelerating client service, refining law firm operations, and optimizing legal research. The state-of-the-art in litigation analytics is embodied by Westlaw Edge, the recently released, reimagined version of Westlaw, the industry-leading online legal research service from Thomson Reuters. (For an exploration of how AI and Westlaw Edge are transforming legal research, see our previous installment in the Law2020 series.)

The Evolution of Litigation Analytics

Generally speaking, varieties of analytics can be described as falling along a chain of evolution, ranging from descriptive to diagnostic to predictive, and culminating with prescriptive, according to this classification by Gartner, the technology research and advisory firm:

In the view of Jeff Arvidson, Director of Product Development at Thomson Reuters, litigation analytics remains for the moment in the descriptive analytic phase: “We are still largely describing, and counting, and presenting information in new and different ways. I don’t think legal professionals and attorneys want us to present the information as being predictive. We’ll leave that up to attorneys to make their conclusions based off the information and the insight that we provide.”

Arvidson believes, however, that litigation analytics may be moving toward a future with predictive capabilities: “We have built the technical and analytic foundations to enable predictive approaches. We can say, ‘Here are the trends over the last three years, five years, 10 years. These are the trends looking back.’ And either we leave you hanging right there, or eventually we start to draw a dotted line forward to show you where that trend line goes. To do that, you have to build new capabilities, and that’s what we’ve done with Litigation Analytics.

Arvidson’s colleague Mick Atton, Thomson Reuters’ Chief Architect for Technology Development, believes that it might all depend on what the meaning of “predictive” is: “I think the underpinning statistics allow you to actually showcase likelihoods of different outcomes, which I think litigation analytics performs. [Y]ou can’t see the future, but what you can do is shape up a range.”

Analytics and Litigation Strategy

Litigation analytics is powered by a set of interrelated datasets, concerning judges, Federal District Courts, case types, law firms, and individual attorneys. Each of these sources moves the attorneys’ strategic considerations beyond the realm of personal experience and anecdotal evidence into data-driven analysis. Analytics has a role to play in every phase of litigation, from evaluating the plaintiff and opposing counsel, to the consideration of appellate issues.

According to Art Anthony, a litigation partner at the firm Locke Lord, litigation analytics translates into a more focused and targeted research process and more informed strategic choices: “We have more information to inform our case strategy. For example, if we are considering pursuing a motion to dismiss in a given case before a particular judge, we can actually do something in addition to searching for opinions a judge may have written on the issue. We can, in a very streamlined way through litigation analytics, pull up information about how a judge has evaluated a motion to dismiss dealing with similar issues. It may not be the exact same issue, but we can efficiently narrow the search. We have more information to predict the likely outcome of our pursuit of a motion to dismiss, for example. If our analysis shows that the same judge has granted more motions for summary judgment than motions to dismiss, then that certainly will impact our decision to pursue a motion to dismiss on the front end.”

Judicial Analytics

Differences among judges was traditionally an area where anecdotal evidence and courthouse scuttlebutt were the only sources of information (“Judge X is pro-defendant” or “Judge Y is sympathetic to plaintiffs”). Analytics allows litigators to form a deep understanding of a judge’s tendencies. According to Jeff Arvidson, analytics provides quantified answers to crucial questions: “What is the judge’s propensity to rule on certain types of motions? How long does that type of motion take? If the client is wondering whether or not a particular motion strategy is appropriate, and you can say, ‘On average, this judge rules 35 percent of the time in favor of this type of motion, but it’s going to take about 150 days to get that ruling,’ such granular data has clear implications for budget determinations and trial strategy. From the perspective of Locke Lord litigation partner Rusty Perdew, the advent of litigation analytics has allayed some previously unwelcome suspense and uncertainty: “Before, when a motion was pending for a while, you were in the dark. You didn’t have insight into whether your situation was unusual or not. And you started guessing as to what that meant. With litigation analytics, I can quickly see a judge’s average time to rule on a specific motion type. This helps me not only advise my clients but also know whether to change our settlement position.”

Not only does analytics drive motion analysis, but it also can provide an invaluable sense of a judge’s experience. Has this judge handled this type of case—either the area of law or the specific industry—in the past? The answer can inform the nuances of high-stakes litigation strategy. For example, if arguing in front of a relatively inexperienced judge, Jeff Arvidson notes that a sophisticated litigator must determine “how much education, gentle education, if you will, is needed along the course of the litigation? Conversely, if the judge is the absolute gold standard, well-versed, the lawyer might need to get more up-to-speed herself, because this judge has more familiarity with this area, with these types of issues than anybody. The trial lawyer better know that.”

Attorney & Firm Analytics

Litigation is of course still decidedly adversarial, and both sides are looking for a more complete understanding of the opposition’s tactics: how they resolve cases or how many of a particular category of cases they’ve handled. This sort of analysis is, according to Jeff Arvidson, “The perfect example of where that insight has always been available, if you’re willing to do some really heavy lifting, and doing searching and searching and searching, and parsing through a docket. But more often than not, it was done by sending emails out to people you think may know somebody.” With litigation analytics, the data underlying such burning questions such as “Are they going to bury me in motion practice during discovery?” or “Do they talk big but settle 90 percent of the time?” is revealed.

Litigation analytics plays a key role in researching and evaluating opposing counsel. Mick Atton points to the power of litigation analytics to help bring clients’ true circumstances into sharp relief: “Our products are meant to assist attorneys, not replace them. As you look at informing clients about their risk profile and what they’re facing, you might say, ‘You’re going to go against this firm, they’re going to make you hurt.’ You can see they’re combative. So, what do you do? Do you settle? Bring in another firm to go hard against them? The analytics help people understand the right response to different elements.”

But litigation analytics does not only serve opposition research. For corporate legal departments and law firms in need of local counsel, analytics is a powerful tool. According to Katelyn Bossany, Product Manager at Thomson Reuters, “if a corporation gets sued in a jurisdiction, and doesn’t have outside counsel in that jurisdiction who has handled, say, employment cases, one needs to, relatively quickly, understand who else potential local counsel have represented and understand their track record. One wants to understand their experience in this area of law. So finding local counsel is relatively easy with tools like litigation analytics.”

Furthermore, corporate legal departments can uncover useful insights using analytics to manage and analyze their own outside law firms. According to Bossany, “They might want to take a look at either their current counsel that they’re working with and see if they really are the best in the business or if they’re going to be best suited for a particular type of litigation. If that analysis doesn’t end up looking great, then maybe they expand their search to other outside counsel and take a look at who’s the best out there.” The analyzing variables examined in such a search might include the firms’ winning percentage compared to its peers and the relative amount of time on average firms’ take to resolve cases.

Managing Client Expectations

Of course, litigation analytics is an invaluable tool when attorneys are presenting and explaining options to their clients, as it can provide better predictions regarding the relative costs of settling versus proceeding, or can help quantity the chances of a particular motion being granted. David Standa, an associate at Locke Lord, notes that analytics can also help attorneys field incoming inquiries: “A big thing clients ask is, “how long will my case stay open?” or “how quickly do you think my case will be resolved?” These are things that are out of a lawyer’s control because it is the judge setting the timeline. Here we can let the client know, in advance—essentially the day we get the case—here is the assigned judge and here is how long it takes this judge to rule on similar cases.”

Moreover, analytics can serve to strengthen the client relationship generally. According to Meredith Williams-Range, Chief Knowledge and Client Value Officer for Shearman & Sterling, “Having the insights provided by Litigation Analytics allows us to better counsel our clients and help them save legal spend. But even more important, this tool helps to ingrain our firm more with our clients. And at the end of the day, that’s what we’re trying to accomplish. This tool is huge.”

Westlaw Edge: Analytics Integration

Mick Atton, Thomson Reuters’ Chief Architect for Technology Development, has a passion for applying cutting-edge big data techniques to fundamental business problems. In creating Westlaw Edge’s litigation analytics, the mission was to “digest the atomic level understanding of a docket. Each of the discrete steps. Not only the motions, but who filed what, what was response time, what were the deciding factors? “Motion type, disposition, all of those elementary facts that are akin to breaking the molecules down until they’re just in their elemental form. Put those in a big data environment, and produce those up into the cloud for rapid querying.”

Thomson Reuters has been amassing and indexing legal industry data for well over a century (West Publishing created its revolutionary “key number system” in 1897!). “We’ve got this huge base of content. The next step is exposing all of those elements,” Atton notes. “We know how to process vast amounts of data to begin with. Our large-scale data store and search engine has eight billion records under management.”

The task of blending of this docket-derived data with the vast store of case law was a dizzyingly complex and daunting one. All indications thus far are that the integration has been a resounding success. Writing on her blog, Jean O’Grady, the trusted maven of the legal research world, declared “This is the tightest integration between analytics and case law which I have seen because WestSearch Plus functionality is woven into the analytics product.”

Eleanor Gonzalez, Research and Information Services Coordinator for Shearman & Sterling, echoes this sentiment: “It’s user-friendly and has a very intuitive interface. It allows me to quickly drill down and get insight into a specific court, judge or expert. This saves me tons of time. Before Litigation Analytics, I had to use numerous dockets platforms to get this information. Now it’s all available in one place. To have this analytical information integrated within the Westlaw platform is a game changer.”

Westlaw Edge provides data on 13 motion types, with 30+ subcategories (covering all federal courts and select state courts). The motion analytics are able to segment motions on an array of factors, for example, whether the motion was granted with or without prejudice. All query results can displayed using Edge’s data visualization functionalities.

The powerful AI woven into Westlaw Edge is manifest in its WestSearch Plus feature. The researcher can simply type a query using free text (RIP Boolean strings), and the system delivers the analytics about, e.g., other jurisdictions where a plaintiff has filed lawsuits or the percentage of times a certain judge has granted a particular motion.

Margaret Bartlett, Library Manager at Locke Lord, cites the utility of Westlaw Edge in conducting expert witness research: “[It] adds a lot of value to our research … I’m able to give the attorneys more than they asked for, including things they didn’t realize they needed. I can find out how often a judge has accepted testimony, plus give examples of what has or hasn’t been accepted. So, the attorneys can tailor their arguments, and make a more educated decision on who they want to use as an expert. It enhances our research to help our attorneys make the best argument.”

The Parable of the Edge-a-phant

In summing up the impact and possibilities of Westlaw Edge, Jeff Arvidson cites the ancient parable of the six blindfolded men appraising an elephant, wherein each describes something completely different. “Depending on whether it’s an associate, or a partner, or a corporate legal department, or a large or small firm, everyone looks at this and sees slightly different nuance or where they think they can plug into it.”

For law firm partners making it rain, Westlaw Edge will help them make better data-driven client pitches and maintain relationships with corporate partners. Edge can demonstrate that a firm understands their organization, or that it resolves cases faster, or has more experience than its competitors. As Meredith Williams-Range puts it, “Innovation is one of the top things being asked about in RFPs. Every law firm has great lawyers. Today, firms must also demonstrate innovation and efficiency. General counsel are looking for partners who will innovate with them. When we offer tools and data, like those provided by Westlaw Edge, to help mitigate legal risk and legal spend, that makes us better partners.”

For law firm associates in the trenches, Westlaw Edge transforms both the legal research process and product, by seamlessly surfacing relevant motions, orders and related content, all with the support of Thomson Reuters’s army of highly skilled editors and Insight Attorneys, who offer both live support and drive TR’s machine learning.

For in-house legal departments deploying Edge, their outside counsel will have never been so accountable and their performance so easily compared to the competition. Furthermore, Edge empowers corporate legal teams, allowing them to handle more research and litigation strategy in-house than was ever before possible.

We’ll conclude with Mick Atton’s sports metaphor to explain the utility and range of Westlaw Edge: “It really is a game plan. Knowing your opponent, knowing the moves that they typically make, knowing the response type … Is the referee going to call that?”