This year I took some time off from blogging about circuit splits to explore another area of interest that I believe will truly change the nature of practicing law over the coming years: big data. While software applications that allow users to glean insights from big data have crept into certain discrete facets of the legal profession (e.g., predictive-coding software in the context of e-discovery), they have dramatically improved the decision-making process in other sectors of the economy (e.g., finance, retail, and even brick-and-mortar businesses like GE and Wal-Mart).
In an article titled "Lawyering in the Shadow of Data," which Professor Stevenson and I recently submitted for publication, we explain the seismic shift underway in the legal profession, whereby lawyers are increasingly supplementing their intuition and practice experience with insights gleaned from big (legal) data. Here is the abstract:
Attorney bargaining has traditionally taken place in the shadow of trial, as litigants alter their pretrial behavior --- including their willingness to negotiate a settlement --- based on perceptions of likely outcomes at trial and anticipated litigation costs. Lawyers practicing in the shadow of trial have, in turn, traditionally formed their perception of the likely outcome at trial based on their knowledge of case precedents, intuition, and previous interactions with the presiding judge and opposing counsel in similar cases.
Today, however, technology for leveraging legal data is moving the practice of law into the shadow of the trends and patterns observable in aggregated litigation data. In this Article, we describe the tools that are facilitating this paradigm shift, and examine how lawyers are using them to forecast litigation outcomes and reduce bargaining costs. We also explore some of the risks associated with lawyering in the shadow of data and offer guidance to lawyers for leveraging these tools to improve their practice.
Our discussion pushes beyond the cartoonish image of big data as a mechanical fortuneteller that tells lawyers who will win or lose a case, supposedly eliminating research or deliberation. We also debunk the alarmist clichés about newfangled technologies eliminating jobs. Demand for lawyers capable of effectively practicing law in the shadow of data will continue to increase, as the legal profession catches up to the data-centric approach found in other industries. Ultimately, this Article paints a portrait of what big data really means for attorneys, and provides a framework for exploring the theoretical implications of practicing law in the era of big data.
You can download the latest draft of our article here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2325137.
I welcome any feedback that you may have.