The practice of law is an industry that craves definitive answers. To that end, cases, laws, and regulations are analyzed and interpreted ad infinitum so that we may have mountains of pages to decode their meaning.
Nevertheless, the legal profession is fraught with unknowns. While some of this uncertainty lies with laws and cases that have yet to be fully interpreted, the primary source of unknowns are the human elements in the legal field: clients, attorneys, and judges.
Unfortunately, these variables may pose an often-fatal threat to otherwise sound case strategies. Is the client telling the whole story? What kind of litigation strategy will the opposing counsel espouse? How friendly is the judge to clients like mine in these types of cases?
The answers to these questions and others like them are critical in preventing a potential catastrophe in a case. Attorneys and law firms must have access to relevant information and analytics to dispel the fog surrounding these questions as much as possible.
Early case assessment: vetting the client
During a new client intake, prudent attorneys understand the importance of being as thorough as possible in gathering information from the client. There are ample reasons for this due diligence beyond ensuring that no conflicts of interest exist: the more information that attorneys can extract from their clients, the lower the chances that a surprise will complicate a case’s trajectory, or worse. A good attorney will make a client fully aware of this reality, encouraging him or her to disclose all relevant information, even if the client is hesitant to share it.
Unfortunately, this strategy isn’t foolproof. Clients often simply may not understand what information is relevant to a case, or they may not even be aware that certain information even exists. Sometimes, a client intentionally omits important facts, believing that the information isn’t significant enough to risk the negative consequences of disclosure.
Consequently, attorneys would be wise to conduct their own independent investigation into a client’s background – perhaps even prior to accepting the individual as a client at all.
Criminal history: relevant for more than criminal cases
Most criminal defense attorneys are very accustomed to researching a client’s criminal history due to heavy influence that such factors exert on the outcome of the case. However, for attorneys in other areas of law, investigating criminal activity may not even be a consideration, believing that criminal records have little bearing on the outcome of their civil legal matters.
Nevertheless, attorneys believe this at their own peril. While a client’s criminal record may have little impact on some civil cases, there is virtually no class of cases in which criminal history finds no relevance whatsoever. Even in those cases on which criminal records do not sway, it is extremely difficult to foresee as much in the early stages of the case, especially if the criminal history is unknown.
In non-criminal cases of every stripe, one party often attempts to use the other party’s criminal activity as an indicator of poor personal character, even where such matters may bear little importance to the subject of the case itself. Family law cases are especially notorious for such strategies, where the temperament of the parties themselves is often at the heart of the dispute.
Even though a client’s dredged up criminal past may not be directly relevant to the case’s subject matter, opposing attorneys will often leverage those records to appeal to the judge’s emotions – a strategy that is effective with surprising frequency.
Of course, crimes of dishonesty, such as fraud and embezzlement may be used to impeach a client’s character for truthfulness, potentially nullifying the effectiveness of your client’s testimony.
As such, attorneys should build a case strategy that accounts for a client’s criminal history being used against him, even when that history is irrelevant to the case at hand. Additionally, discussing these matters with your client is an excellent method of obtaining even more background facts about the case that the client may have been hesitant to reveal, or may not have even believed were relevant.
In short, attorneys should assume that a client’s criminal records will surface during the course of the legal matter, and should prepare accordingly by researching a potential client’s criminal activity prior to formulating a case strategy or even taking on the client at all.
Civil actions: involvement says a lot about a client
Attorneys may wade through litigation so often that they sometimes forget how much information can be found in civil court filings. For better or worse, these filings are largely available to the public, meaning that an opposing party can easily obtain them in most circumstances.
Such an occurrence would not necessarily be as harmless as it may first appear. An opposing party may find something in the filings of a previous case to attack the character or credibility of the client in the present case. Potentially unfavorable information that an attorney would prefer to downplay or otherwise withhold as much as possible could be exposed in broad daylight in the filings of another civil case. In short, the potential information from other civil cases interfere with an attorney’s ability to steer the narrative of her argument.
Aside from the content of the filings, the mere existence of other civil suits creates potential complications for a litigation strategy. First, a client’s status as a defendant typically indicates that he or she is, at a minimum, accused of doing something wrong.
The complications extend beyond a client’s role as a civil defendant: a potential client appearing as the plaintiff may create the risk of the client appearing overly litigious, especially if he or she is responsible for initiating multiple lawsuits, or if such prior lawsuits have particularly shaky legal foundations.
Finally, knowledge of the potential client’s involvement in other lawsuits may impact more than the client matter itself: it could protect a firm’s bottom line. If the client has ever sued another attorney, such a lawsuit may suggest that your potential client may be inclined to blame the law firm or the attorney personally for any disappointment in the legal matter. Conversely, a client’s previous attorney suing the client may indicate that the client may not be trustworthy when it comes time to pay the bill.
Having this information does not bind attorneys to one course of action or another; rather, it allows attorneys to have more open discussions with clients and potential clients, make better decisions about representation, and plan a case strategy with as many of the client’s cards showing as possible.
The client and the Internet: how bad is the damage?
For all of the advancements ushered in by the Internet age, it has certainly created an entirely new class of privacy concerns. Yet, these privacy issues largely stem from individuals accepting the Internet’s invitation to share as much personal information as possible.
That is where the headache begins for attorneys: Clients and potential clients who have been a little too free with their information online. Many clients actively report on their daily lives, often also posting photos and geographic location information.
Unfortunately, these individuals often fail to grasp how many of these personal details could be used against them in a legal proceeding. On the other hand, attorneys have been increasingly forced to confront this reality over the past two decades or so such that assessing client online presence should be a common attorney habit nowadays.
Attorneys must be the first to identify online records pertaining to their clients so that they are able to identify and minimize the further dissemination of any harmful information. Such information may find its way to an opposing party regardless, and attorneys must adjust their case strategies to account for such a possibility.
Nevertheless, the Internet is a big place, and it’s very time-consuming to scour it thoroughly enough to identify any adverse client information floating around – even with the help of the client. Attorneys should consider third-party services such as Thomson Reuters PeopleMap that offer a comprehensive online presence search for individuals to ensure that attorneys cast their net as widely as possible with the smallest investment of time necessary.
Indeed, for researching most, if not all critical information for vetting a client and planning initial case strategy, attorneys should look to such services that can search public records and other databases to maximize access to potential client information while also minimizing investment of attorney time.
Know your judge and opposing counsel
It’s no secret in the legal profession that most attorneys aren’t in any rush to bring a case to trial. Full litigation is costly, time-consuming, and, perhaps most importantly, dictated largely by unpredictable human elements.
The first of these in the minds of most attorneys is likely the jury, which is almost always constituted of laypeople who have very limited familiarity with the law. Unfortunately, juries are notoriously difficult to predict; even those attorneys who tout themselves as the most skilled at voir dire will nevertheless admit to being surprised by a jury occasionally.
The other two human elements – the opposing attorney and the judge – may not be perfectly predictable, but they are distinguishable from juries in that they can be a “knowable unknown.” That is, while they may be an unknown in the sense that there’s no solid predictor of how they will act in a specific legal matter, the legal activities of judges and attorneys leave a paper trail that helps establish patterns to their individual preferences and biases.
Understanding these patterns can help in planning case strategy tremendously by answering key questions, such as:
- How often does this attorney settle?
- How friendly is this judge to the argument I’m making?
- How often does this attorney prevail on this type of motion?
- When is the right time to settle?
To be sure, judges and attorneys still have the capacity to surprise. More often than not, however, they will stick to their established patterns, rendering their past activities reliable indicators for future ones, which can be employed to enhance case strategies to maximize positive outcomes for clients.
Know your opponent: factoring the opposing counsel into your strategy
Litigation is often similar to poker, where the concealment of information allows players with the weaker hands to sometimes emerge victorious. Likewise, in the contest of litigation, where players are constantly trying to discern the motives of others in the game, the side that can successfully predict the actions of the other is at a distinct advantage.
Thus, knowing the type of arguments that an opposing counsel will likely make allows an attorney to prepare counterarguments preemptively. Unless an opposing counsel is a relatively new attorney, court records hold memoranda, briefs, and other filings with arguments submitted by an opposing counsel – sometimes in high volumes.
Previous arguments like these provide key insights into an attorney’s preferred styles of argument, use of authorities, and level of expertise on particular topics. It’s a fair bet that an attorney will continue in the same habits, allowing the other attorney to minimize her chances of being caught off guard by an opposing tactic when preparing her argument.
Beyond their substance, these previous filings, along with case docket records, can reveal an opposing counsel’s experience in a certain area of law. Attorneys generally tend to focus on a specific practice area, with which they become incredibly familiar. An attorney’s competency within this area could be further inferred by his success rate on motions and trials.
If the matter in question is within the opposing attorney’s primary practice area, he may be less likely to settle, being more familiar with the laws and procedures in that area of practice. It may also make settlement a more attractive option to an attorney facing an opposing counsel with more experience in a certain practice area.
Conversely, if the opposing counsel is stepping outside of his typical practice area, he may not be as comfortable proceeding all the way to trial, making settlement a more attractive option to him. Nevertheless, many attorneys out of their depth refuse to recognize as much due to their own hubris, and may push the case forward simply to prove that they are capable of doing so. However, a lack of experience in certain practice areas can lead to a higher risk of the attorney making a mistake – perhaps even one that costs him the win.
An opposing attorney’s competency in a particular practice area isn’t the most direct indicator of his willingness to settle; rather, it is the attorney’s actual rate of settlement. Court docket records routinely include the manner in which a case was disposed, thus revealing how many cases were ended through settlement. Having this knowledge allows an attorney to better understand the chances that the present case settles, and to set client expectations on the case outcome accordingly.
Of course, the number of cases and filings required to be analyzed to get this data may be immense, and the time and effort required to do so is prohibitively high. Thanks to artificial intelligence technologies, this analysis can be done without human intervention, so that the data is organized and presented in an easily digestible manner. Litigation Analytics, fully integrated into Thomson Reuters Westlaw Edge, offers this valuable solution.
Litigation Analytics is essentially a supercharged profiler, compiling, analyzing, and presenting troves of data on attorneys. It compiles all of the cases with the attorney’s name attached, sorts the percentage of those cases that belong to a specific case type, and can display the dockets of the filtered case type. Litigation Analytics reveals an attorney’s success rate with cases and motions, and shows how often an attorney settled in past cases. And this information is just the tip of the iceberg of how much information is available.
This vast amount of information sorted so neatly offers attorneys an invaluable tool to help know what they are getting from their opponent, and to help set client expectations to minimize disappointments.
Know the robe: understanding the judge’s approach
Although the law is purported impartial, judges decide how the law applies to a case’s particular facts. Because judges are humans with a variety of beliefs and experiences, the conclusions that each could reach in the exact same case could vary wildly. As a result, understanding a judge’s judicial philosophy and approach often improves an attorney’s case strategy and litigation outcomes.
Arriving at such an understanding is simpler than it may initially seem. Judges have to put their decisions on a matter in writing that is, in most circumstances, available to the public. In addition, with limited exception, judges are required to “show their work” in a decision; that is, they have to provide a rationale for their decisions, citing pertinent laws, cases, and regulations along the way. These decisions coalesce to form a framework of a judge’s judicial approach, and the longer the history on the bench, the more detailed this framework becomes.
Attorneys can leverage this framework in a variety of ways.
Attorneys can look at a judge’s past rulings for any patterns that indicate whether a particular judge is more favorable to plaintiffs or defendants in the specific type of case at hand. If it turns out that an attorney’s assigned judge is particularly unfavorable to her client as a plaintiff or defendant (as the case may be), the attorney may be able to substitute judges if it is early enough in the proceedings. If such a substitution isn’t possible for whatever reason, the information is still valuable for setting appropriate client expectations so that if the case does go south, the blame should hopefully fall more on the judge’s biases.
Although some judges may tend to favor one or another, no judges always rule for their preferred party. In other words, a judge’s bias against an attorney’s type of client isn’t automatically fatal to the case. Even if an attorney’s client is on the wrong side of a judge’s biases, the attorney can work to overcome that bias by analyzing the arguments made by similarly situated clients that won the judge over, and distilling the common elements for success.
Judicial preferences extend beyond the simple plaintiff/defendant dichotomy. Many judges have individual predispositions when it comes to expert testimony, and whether to allow certain types in some cases over others. Some judges take different approaches to admitting certain types of evidence than others. Some appeals court judges are more likely to overturn decisions than others. And the amount of time that judges can take to reach decisions can vary substantially.
This insight can be a boon for an attorney’s case strategy. Simply knowing of a judge’s predispositions bolsters an attorney’s ability to properly temper client expectations. But because judges provide rationales for virtually all of their decisions, attorneys can learn from the experience of hundreds of other attorneys by seeing what kind of arguments appeal to a judge, and which should be avoided.
The raw data for creating this insight is already available in the publicly-accessible court dockets that attorneys use every day. As with similar profiling of an opposing counsel, however, a judge may have thousands of decisions to sift through before any insight may be gleaned – a virtually impossible task for any legal professional. But as with profiles of other attorneys, Litigation Analytics leverages AI technologies to analyze, compile, and present troves of information on judges.
Each judge’s profile in Litigation Analytics contains expansive examinations of that judge’s habits, along with catalogs of that judge’s case dockets and rulings. The rulings can be filtered using a variety of criteria so that attorneys can find the cases that matter most for their own matter (e.g. a filter that only shows rulings where the judge denied a defendant’s motion to compel discovery).
The profiles available in Litigation Analytics go a long way in dispelling the fog of uncertainty created by the human elements of judges and other attorneys in the practice of law. Judges play a decisive role in the outcome of a case – literally. As such, information that provides an attorney insight into a judge’s potential viewpoint on a case allows an attorney to temper client expectations appropriately to reduce any client disappointment in a possible negative outcome. Moreover, an attorney armed with data about the types of arguments that resonate with a judge has a competitive edge over the opposing party.
Likewise, forewarning of an opposing attorney’s favored plans of attack allows attorneys to prepare a preemptive counter defense, potentially undermining the impact that such attacks would have otherwise. By supplying an opposing counsel’s history and experience in a particular practice area, Litigation Analytics may also help attorneys understand their opponents’ likelihood of settling – and potentially call their bluff during settlement negotiations.
In addition, PeopleMap can scrutinize potential clients to unveil as many unknowns as possible about this last human element. While it is critical that clients be fully honest with their attorneys, this often does not play out so smoothly in practice. Perhaps clients cannot remember everything, or maybe they’re hesitant to discuss a topic about which they are embarrassed or that they believe to have little relevance to the case. PeopleMap allows attorneys to understand the publicly-available information about their clients to minimize the chances of any unpleasant surprises disrupting case strategies.
PeopleMap and Litigation Analytics offer vast amounts of relevant data, presented in a comprehensive, easily understood layout. With the heightened awareness and insight supplied by the tools, attorneys can feel more confident navigating the often-treacherous waters of litigation.
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