On Litigation And The End Of Well-Intentioned Guesswork

Manhattan, New York, May 18, 2015 (Newswire.com) - ​These days my barrister wig sits on my bookshelf to remind me of early days in London. It's hard not to recall the delight of my first case and the total absence of instructions I received - nevertheless the blank sheet was dutifully bound by a pink ribbon - my first "brief". And off I went to a criminal court in east London. Add some "quick thinking on my feet" at the court and it turned out ok, as it happens. 

Many years since and given my time hanging around trading floors and now legal technology, I have news. It's all changing - and what we see so far is but a fraction of what is indeed coming. That's a thoroughly good thing for buyers of legal services, in my view. Law is finally seeing the implications - and numerous benefits - of the underlying data on which so much law and legal process is fundamentally based. Ironically, the  precedent and repetition on which so many legal transactions are based has made law an ideal candidate for automation albeit this is still a sore subject for some hard-liners. 

"In my view. Law is finally seeing the implications - and numerous benefits - of the underlying data on which so much law and legal process is fundamentally based."

David T Kinnear, LEGAL CONSULTING ADVISER AND UK BARRISTER

But what of litigation? How susceptible to change is litigation? Beyond just ediscovery, I think there are more disruptive elements to come - especially when viewed through a client-centric commercial eye. It requires us to look at litigation as a product of circumstances delivering an outcome or series of outcomes - all of which have data components we can derive and use to quantify risk. It also requires us to use virtual technology in law that we've used almost everywhere else - except law!

This is the raison d'etre of technology-driven solutions such as yurJURY, Premonition and Kelsen. To tackle and answer questions based on the data and resources we can tap - and to get in the mind of your jury - to avoid unnecessary mystery, guesswork and associated costs in the litigation process. Many questions become a quantitative and qualitative conclusion instead of guesswork when we prepare this way. It has huge implications for the efficient conduct of litigation. Who wouldn't benefit from knowing the true likelihood of success at trial or the likely outcome of a jury decision on the value of the case?

Consider the importance and benefit of knowing the answers to questions like the following - before trial - and before incurring substantial legal costs:

• How will a potential jury view your evidence?
• Which evidence is most persuasive?
• What value will a jury likely place on a claim?
• What questions will a jury ask - that you haven't thought of yet?
• How has this litigation counsel performed previously premonition (win rate)?
• How has this judge decided on this type of case previously?
• etc.

None of the above questions is "rocket science" but the answer to each has very significant potential consequences at trial - especially if you're the client whose business or liberty depends on it. And let's not forget just how expensive litigation is. I do think this has implications for the role and conduct of litigation - encouraging if not enabling us all to take a more quantitative and commercial view of this activity. As always, I welcome your thoughts.