Can litigators afford not to know the data — a view from LIDW 2023

‘Without data, you’re just another person with an opinion’ - W. Edwards Deming

With research showing 69% of US lawyers use litigation analytics on a daily basis, and leading UK litigators increasingly looking to do the same, the panel discussion held at Gatehouse Chambers as part of London International Disputes Week 23 (LIDW 23) addressed the question: can litigators afford not to know the data?

The session was hosted by Solomonic, Gatehouse Chambers and Herbert Smith Freehills.

How is data used currently in the legal market?

There is huge variation in the extent to which data is used today, but the panel noted that there has been a recent shift in awareness and engagement. The challenge faced by many law firms now is how best to harvest the ‘metadata’ of each dispute they act on (and thereby build a rich proprietary data set) as well as making full use of external data platforms in order to provide valuable insights for clients and typically data-driven decision makers.

The panel agreed that dispute resolution is an inherently uncertain business, and there was a utility to being able to frame discussions concerning prospects of success, likelihood of settlement, overall duration, costs etc with reference to data mined from similar disputes. Sophisticated clients also increasingly expect practitioners to be able to speak to the risk profile of counterparties, identify potential experts and the approach of an assigned judge in any similar past cases to help inform strategy.

What are the limitations?

The panel highlighted that data can be misleading and understanding its limitations is a key element to harnessing its potential.

By way of example, data related to a counterparty could show a clear trend (for example, that they are risk adverse or highly litigious) but that might be dependent on the types of cases they have encountered previously and could have no bearing on how they are viewing your claim. Equally, the data might suggest that a particular type of claim in front of a particular judge has a 100% success rate, but that could again be due to the strengths of those claims or because they were all decided prior to a particular Court of Appeal decision, for example, that has since changed the law.

Just because something has happened in the past does not necessarily mean it can be used as a guide for what is likely to happen in the future.

What is the future for data use?

Practitioners have a professional obligation to act in the best interest of their clients and effectively harnessing data to advise on litigation risks, inform strategy and save costs may increasingly be viewed to be part of that core duty.

The panel considered the bell curve of claims and that, in the interests of efficiency and costs, the sense that smaller claims might ultimately progress without much meaningful human involvement before long. However, the panel expressed some concern at this prospect. More generally, the panel considered that the real value of data is often inextricably linked to the quality of its analysis. Knowing how to frame any analysis of data, and additionally drawing on judgment and experience, will continue to be important.

Consistent with the overall theme for LIDW 23 (ie ‘adapting to a changing world’), finding the right way for litigators to work with data and to interpret it to best effect for clients (while having regard to all their professional obligations, particularly when considering the use of proprietary data) remains a key strategic challenge.