Data has been an inextricable offshoot of the digital age. With the ever growing consumer base, ever increasing amounts of information are accumulated by all kinds of entities- from social networking and e-commerce sites which collect data for providing customised recommendations and targeted advertisements to governmental organisations which utilise consolidated data for greater efficacy in planning welfare oriented schemes, the scope of data is limitless.

Of course, this engenders various legal consternations like the threat to the right of privacy of a user to nefarious elements misusing this data, sometimes, allegedly, to influence the elections of a robust democracy like the United States of America. 

In this backdrop, it is unsurprising that the word ‘data’ evokes such legal qualms and consternations in the mind of a lawyer. However, in his article “The Evolution of Data Analytics and Litigation Management” Greg Stern highlights the utility of such data and more importantly a meticulous analysis of such data in the process of litigation. Mr. Stern substantiates why data has the potential to be an “even more valuable and effective litigation management and prevention tool.”

 The value of litigation data has been appreciated by the legal fraternity since centuries, the most pertinent example being that of a system called “West Key Number System” which devised in 1906, helped lawyers identify the apropos point of law to research as precedents. It also facilitated in making an educated guess about the outcome of a case, point out Mr. Stern.

With the onset of digitalization, numerous corporations like Westlaw, Lexis  and Bloomberg law offered online research tools. The came with additional and more sophisticated analytical tools, allowing lawyers to scrutinize the selected case  in depth. As technology, especially, artificial intelligence ameliorated the remnants of human elements were also expurgated. Themes, points of law and specific issues are now delineated by intelligent AI, bereft of any active human assistance. As the volume of such data has augmented, the technology has become increasingly adept at prophesying the outcome of a particular litigation,. This is on account of more nuanced pattern recognition techniques, which now even suggest the best resolution tactics for a given lis.

However, the process is still nebulous. Primarily, the databases restricted their focus on how a Court in a specific jurisdiction would assess the legalities of  a case. As increasing amounts of data inundated these databases, they increasingly narrowed their attention to the most minutiae specificities, sans any exaggeration. The algorithm now is so specific that it can showcase how an individual judge rules on cases of a specific kind. Having assessed a gamut of similar litigations and the judgements of a specific judge, it becomes easier to decipher their temperament, allowing the counsel to prepare a tailor made argument likelier to garner the judge’s approval. The same could be done for expert witnesses and opponent counsels. At the click of a button the entire dossier of their litigative history can be tendered, exposing their strengths and weaknesses, discern their strategies opening the avenue to exploit these strategies. 

The scope of applicability is not restricted to merely the procedural aspects of a litigation, Mr. Stern posits, such innovations can also assist in calculator of the pecuniary aspects of various litigations.

Mr. Stern bifurcates the applicability of data analytics under two heads-

1. Descriptive Analytics: This adumbrates the jurisprudence in a particular area of law.
2. Diagnostic Analytics: This enumerates the rationale behind the jurisprudence adopted by the Courts.   

A synthesis of these two gives rise to-

• Predictive Analytics: Predicting the judgment in a particular type of case.

This would open the scope for

• Prescriptive Analytics: Attempting to influence the final outcome..The author cites as an example, filing your case in a Court which has proved to be more favourable to stances similar as yours in that particular aspect of law.

Such voluminous and verbose information can prove to be intimidating, especially for clients who have nugatory understanding of abstruse legal concepts. This information is thus showcased graphically, the author points out. This can help the client in appreciating the “litigative risks” of their case, the author opines. As the algorithms become more nuanced and advanced, they are proving to outperform even the most skilled litigators in analysing the outcome of a litigation. What more, it is now performing tasks and identifying correlations that humans most often overlook. This can prove instrumental in jury selection. Intensive data mining helps weed out incompetent jurors, the author posits.

Ironically, these litigation analytics tools are used by companies to reduce litigations by identifying behaviours that result in litigations and making commensurate policy changes to eschew habits and policies that would result in litigation in the future.

As a denouement, the author opines it is indispensable to acquaint oneself with such developments so that we can capitalize on them and benefit. Equally importantly to cavil against potential pitfalls in such technology and alerting one’s clients to such pitfalls.

The original article by Mr. Greg Stern can be accessed by clicking here.