Where Do We Go from Here? Transformation and Acceleration of Legal Analytics in Practice
| Citation | Vol. 35 No. 4 |
| Publication year | 2019 |
Where do we go from Here? Transformation and Acceleration of Legal Analytics in Practice
Patrick Flanagan
Baker & Hostetler LLP, pflanagan@bakerlaw.com
Michelle H. Dewey
Baker & Hostetler LLP, mdewey@bakerlaw.com
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The advantages of evidence-based decision-making in the practice and theory of law should be obvious: Don't make arguments to judges that seldom persuade; Jurisprudential analysis ought to align with sound social science; Attorneys should pitch legal work to clients that demonstrably need it. Despite the appearance of simplicity, there are practical and attitudinal barriers to finding and incorporating data into the practice of law.
This article evaluates the current technologies and systems used to publish and analyze legal information from a researcher's perspective. The authors also explore the technological, economic, political, and legal impediments that have prevented legal information systems from being able to keep pace with other industries and more open models. The authors detail tangible recommendations for necessary next steps toward making legal analytics more widely adopted by practitioners.
I. A Brief History of Data Analytics and Their Use in Law
A. Emergence of Data Analytics as a Discipline
Data analytics is an emerging field in the past few decades and, more recently, an emerging field in the legal sector.1 This field has a variety of complex definitions and uses but has been described most
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simply by one vendor as the use of "high-level methods and tools to focus on projecting future trends, events, and behaviors."2 Though data analytics is seen as an emerging concept in many fields, including law, the application of data has been a reliable business tool for several decades. What has changed is that the tasks long associated with business process have become simpler, more accurate, and less expensive. This evolution has come with advances in access to technology, ability to store technology, and enhanced technology for the retrieval, manipulation, and presentation of data.
The historic uses of data in the form of manual collection can conceivably be traced back as far as early census approaches in Mesopotamia. Complex analysis of mathematical data is often noted to have emerged in earnest in the 1730s with Leonhard Euler's publication on graph theory.3 In the middle of the twentieth century, however, the field of business analytics began to develop in earnest. The rise of early computation and storage tools encouraged automated processes and allowed for quicker application of data sets.4 This era, often referred to as Analytics 1.0, focused on smaller data sets, which tended to be highly structured and harvested from internal data sources tracking information such as a company's internal operations and transactions. The focus of the work of Analytics 1.0 was on the collection and preparation of data, not analysis.5 Moreover, although there was growth and advancement during this era, the true application of predictive data algorithms was restricted mostly to academia due to the high cost associated with computing resources.6
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As the twenty-first century began, the Internet presented opportunities to gather and analyze increasingly large data sets. Entities like Facebook and Google developed internal data at unprecedented rates.7 The rise of personal computing also meant greater access to, and reduced costs for, the tools needed to manage and examine data.8 These changes ushered in Analytics 2.0 and the beginnings of the era of "big data."9 The term "big data" has a plethora of asserted origins and explanations, but the core definitions refer to the size, complexity, and technologies associated with a given data set.10
Analytics 2.0 largely relied on externally sourced data, such as Internet data, public data, and open-sourced data projects.11 These big data sets meant a new need for more advanced frameworks and tools to manage, sort, and analyze data to find ways to improve business outputs and profitability.12
A new phase on data analytics has arguably already begun. Analytics 3.0 moves past using analytics to evaluate business operations and toward integration of analytics into the product itself.13 These integrations have given rise to the sub-disciplines of predictive and prescriptive analytics and the use of analytics to support on-the-spot decision-making.14 Thomas Davenport describes it as "the era of data-enriched offerings."15
As most industries shift from 2.0 to 3.0, the market for data technologies grows each day. From the unique applications of analyzing health-care data transactions to consumer and financial
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applications,16 the law has only begun to engage with data analytics as a concept and a practical tool.17
B. Historic Use and Applications of Data and Analytics in the Law
The legal field has a long-standing reputation for being slow to change.18 The legal sector largely did not participate in Analytics 1.0, but qualitative and quantitate analytics have been present in legal
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work for some time. Like other disciplines, Analytics 1.0 was largely represented in the academic sphere of the law.19
In the 1960s and 1970s, the legal sector saw a growing number of law review articles that used survey data, court statistics, and other quantitative data to make legal arguments. One author noted,
As the number of numbers consulted has grown, the sophistication of the techniques used to analyze and interpret these numbers has also increased: instead of simple tabular presentations, courts and legislatures are apt to confront multiple regressions and the associated statistics—significance levels, correlation coefficients, and so forth. Thus, the language of factfinding together with the character of the disputes involved has thrust upon legal institutions a host of questions regarding the use of quantitative methods.20
Both courts and scholars were beginning to warm to the notion that some elements of the law could be quantified and that those components could be used to bolster legal discourse, if not legal arguments in practice. There are ample historical references with respect to data use, with increasing frequency from the 1970s onward.21 Courts have long looked to legal and nonlegal statistics when fact finding.22 Statistical measures have been used when
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legislatures make new laws23 and when executive agencies make and promulgate rules.24 Although access and time were practical barriers to the sophisticated use of statistics in daily practice, courts and practitioners often reference statistical data when published in scholarly works.25
Alongside the growing integration of statistics in legal academics and practice, the legal sector has been slowly moving away from print and embracing more electronic sources for research. As early as the mid-1990s, scholars were remarking on this transition:
The dominant role played by the book in legal information is now ending. My contention is that its demise will not manifest itself in the form of a clean break with tradition. There will be at least a decade, perhaps a generation, involved in constructing the new information environment. Many lawyers, law professors[,] and judges remain creatures of the old information and will never change their views of how things ought to be. However, they are being superseded by newer researchers, who come to the profession as devotees of electronic information.26
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Berring was right; it took almost a decade and a half more, at the end of the first decade of this century, for legal scholars to declare a legal "Information Revolution."27 These new changes in the mechanisms by which attorneys, legal researchers, and law scholars found and disseminated legal information also brought new ways to sort, tag, and use legal information. Analytics 2.0 was finding its first foray into the legal market through its own sets of Internet data, public data, and open-sourced data projects.28
As law begins to embrace Davenport's era of data-enriched offerings, the market for new tools and approaches increases rapidly. Although the first detailed discussions about using big data in law practice emerged less than a decade ago,29 lawyers, judges, and information professionals are already deploying and shaping Analytics 3.0, as it still fulfills the promise of the previous phase. The legal industry will continue to develop because the legal workforce buys in to new tools and new workflows, threatening to catch up to its peers.
II. Current Landscape of Analytics in the Legal Sector
It has been three decades since Bob Berring predicted the demise of the book's dominant role in legal information.30 This move from a
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print to an electronic information age has ramifications beyond the ease and access of legal research. Current visions of legal analytics are possible in part because we now have a useful backfile of electronic information. This new and evolving environment of electronic information carries over legacy publishing systems while simultaneously creating new tools and use cases.
Here we consider some important sources of legal information and how lawyers and law firms employ them. There are many metrics and types of information that lawyers can employ to evaluate their business, their clients, and justice writ large.31 Litigation analytics is important among them for good reasons: (1) they are emblematic of the profession; (2) common law principles means any given litigation may become precedential; (3) the data is relatively accessible; and (4) they can provide a high impact for individual parties and the broad market. The ability to gather, store, and sort vast amounts of litigation data—data on judges, courts, parties, outcomes, etc.—brought the rise of the first...
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