Data gives us the opportunity to be proactive in litigation, reducing costs, speeding up resolutions, and improving outcomes. But first, we need a strategy.
My name is Jennifer Buser, Anusia Gillespie’s colleague. For those of you expecting Anusia, she’s at home in Miami enjoying maternity leave with her spouse and newborn son, Raphael Brye Gillespie. Although Anusia is a true pro with columns drafted far in advance, she thought it was important to model good work-life boundaries.
In addition to being happy for Anusia, I am pleased and honored to be her substitute columnist for this month’s edition of NewLaw Fundamentals.
In 2010, I became part of the NewLaw movement when I joined UnitedLex, where I currently serve as Senior Vice President of Litigation. So my strategy in this column is pretty simple — I am going to write about what I know, which is NewLaw approaches to large-scale corporate litigation.
At UnitedLex, we used the term “Digital Litigation” to refer to a wide range of tools and methodologies designed to achieve better litigation outcomes. Although Digital Litigation is a relatively new term, it’s catching on with thought leaders and thus worth exploring. See, e.g., Mark Cohen, “Digital Litigation: Dispute Avoidance, Early-Detection, Accelerated Case Strategy, and Early-Resolution,” Forbes, Apr 19, 2021 (noting that Digital Litigation “replaces the inevitability of litigation and its protracted life-cycle with avoidance and early resolution”).
Q. What is Digital Litigation?
Digital Litigation is a proactive approach to litigation that focuses on portfolio and matter-level data to improve overall case strategy, drive better, earlier resolution, mitigate risk and liability, and ultimately avoid future litigation events. As discussed below in greater detail below, these desirable outcomes require a deep, ongoing commitment to data and process. Yet, once in place, the result is access to the most complete picture of a case with earlier milestones, which in turn enables data-driven decisions about matter strategy, investment, and resolution.
For those new to NewLaw, this may sound like MBA-speak. So perhaps a more concrete way to explain Digital Litigation is to put ourselves in the shoes of the client. which the case of UnitedLex are Fortune 1000 companies and the AmLaw 200 law firms that serve them.
Q. What is the problem that Digital Litigation solves?
In the current state of litigation, most large-scale litigation cases take nearly three years to resolve, with most cases settling and nearly half (44%) settling within 30 days of trial. See John Barkai & Elizabeth Kent, “Let’s Stop Spreading Rumors About Settlement and Litigation,” 29 Ohio St J on Disp Resol 85 (2014) (compiling and presenting data).
Suffice to say, this is an enormous amount of expense and uncertainty extended over a prolonged period of time. Given the landscape, it’s easy to understand why the C-Suite is looking for ways to bring more certainty to the litigation process, including reliable, data-driven ways to control costs and de-risk potential outcomes.
Q. How does Digital Litigation work in practice?
Digital Litigation as practiced at UnitedLex is a series of interconnected processes designed to surface facts and insights necessary for early case assessment and decision making. Specifically, our Digital Litigation Model enables legal departments to understand their case in three months rather than three years. With the rapid acquisition of knowledge of the risks and merits of the case, the client has an opportunity to drive early resolution.
At UnitedLex, the Digital Litigation Model is focused on a modern approach to data management, which includes the following five steps:
1. Creation of a holistic Knowledge Management strategy. Legal departments should identify, maintain, and achieve comprehensive and consistent control over the data sources that impact litigation outcomes. This includes prior matter work product, document review coding, and production and privilege logs created during discovery. Through comprehensive Knowledge Management, legal departments have an opportunity to significantly reduce re-review of documents for new matter productions. Likewise, a KM strategy that includes a repository of known issues and relevant custodians will speed up the investigation response as well as jumpstart the discovery process.
2. Application of AI models that analyze portfolio-level data of historic matters. This modeling includes analysis of law firm and third-party provider portfolio billing, budgets, settlements, outcomes, timelines to resolution, matter origination, outside counsel effectiveness, opposing party/counsel effectiveness, transition rates of investigation incidents to litigation, and more. Often time, a wide-angle view of a litigation matter provides the information necessary to conduct bespoke AI modeling that can predict (within a band of statistical certainty) outcomes, case liability, valuation, and potential settlement ranges.
3. Creation of a 360-degree view of the case: Successful litigation often hinges on crafting an effective story. This requires a case dossier that contains:
- Portfolio-specific data points – analytics on similar matters, outcomes, challenges, and liabilities;
- Case-specific data points – key evidence surfaced within 90 days, as well as a timeline of events and primary players;
- External data points about the opposing party, opposing counsel, judge, and jurisdiction.
The keys to accelerated resolution are data and understanding. Getting key data with multi-dimensional context to decision-makers as quickly as possible empowers lawyers and the business to make informed decisions regarding strategy and resolution.
4. Optimized work allocation. Employing a right-resource right-task automated work plan immediately improves the effectiveness of each person assigned to a matter. Cf. Post 248 (noting that technological leverage, as opposed to pure people leverage, has an enormous cost and quality advantages that are just beginning to take hold). This disaggregated approach ensures both the efficiency and value of using higher and lower cost resources among panel firms, within firms, and between firms and third-party providers. This is accomplished through analytics workflows like Continuous Active Learning (CAL) that automates the assignment of work efforts to the lowest-cost resources, leveraging multiple time zones and acceptable cost-to-risk ratio of work components. This is made possible by tracking responsiveness scores for each phase of the discovery process (first pass, quality review, and privilege identification, etc.).
5. Incorporation of NextGen AI modeling to provide feedback to the business and avoid future disputes and litigation events. This last component arguably is the most transformative, as it’s all about prevention. Through the use of AI models and analytic tools, legal can proactively detect friction in monitored sectors of the business and rapidly identify and resolve issues, thereby improving risk containment measures. Lessons learned regarding the nature of disputes, location, frequency, and how/why disputes occur can be distilled into postmortem business training and policy changes to prevent incidents in the future.
In the year 2022, and even more so in the future, there is an unprecedented amount of litigation data that is being created. Legal departments and firms that embrace the evolved model of practice and harness this data will create tangible business value through improved case outcomes and dispute avoidance.
Digital Litigation doesn’t solve for all risk in litigation, but it does position the legal department to clearly see and understand the sources of risk and make better, more informed decisions about the path forward.
At UnitedLex, we are very proud of what we are designing and building for clients. At Bill’s request, I offer the following graphic, which summarizes Vantage, which is our current branded approach to Digital Litigation.
Thank you for the opportunity to stand in Anusia, who will be back next month.