Lawyering in the Shadow of Data

Oliver Wendell Holmes, Jr.

I just came across a paper by  Drury D. Stevenson and Nicholas J. Wagoner, called “Lawering in the Shadow of Data”.  They discuss how “big data” can – and indeed should – be used in litigation. The articles opens with O.W. Holmes’ immortal quote: “For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.” The authors’ key argument: Holmes’ future is NOW.

The link above is to the draft version on SSRN. The article has since been published in Florida Law Review, Vol. 66, No. 5, 2914. 

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.”

The photo shows Holmes in 1902, the year he was appointed to the U.S. Supreme Court. Source: Wikipedia.

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