Sponsored briefing: Litigation analytics brings hard data to high-stakes decisions

Grant McCaig, head of litigation at Phoenix Group, the UK’s largest long-term savings and retirement business, discusses the value analytics brings to high-stakes litigation decisions

The past few years has seen pioneering litigation analytics company Solomonic utilise machine learning technology and human expertise to create powerful structured data from unstructured litigation documents and judgments. This has, for the first time in English High Court cases, brought data and insight to the decision-making process.

One of the challenges facing in-house litigators is explaining merits and assessment of risk to business stakeholders. The company boards and senior executives I report to are sophisticated and experienced individuals. My job is to help them make the most informed decision on behalf of our business. In the past, I have avoided numbers as they are not based on data, instead using legal terms such as ‘better of the arguments’, ‘finely balanced’ or ‘good prospects’.

However, what these terms fail to convey is the spectre of litigation risk. Often this is explained using terms such as ‘the risk of the judge, a witness or a barrister having an off day’. Rarely does it stray into the territory that there is a risk the lawyers making the assessment might be wrong.

Historically, in my experience, data and statistics are rarely used in assessing litigation. Lawyers have a preference to rely on their own personal judgement and experience. A good example of this is dispute duration – one of the questions I am regularly asked is how long a case might take. When I check with my external lawyers the answer is usually along the lines of 18 months to two years – there is no science to the answer.

There is no substitute for the knowledge and judgement of an experienced lawyer and each case will succeed or fail on its own unique merits. However, there is a vital place for data in the legal assessment both to help decision makers better understand a case and to also build confidence. The example of duration is a good one. Being able to note the average period to judgment for a similar case in the same court gives my stakeholders comfort that I am assessing matters from a position of data, detail and authority.

Although historical case data will not impact the assessment of the merits of a case, it does inform the context for key decisions. If I have a case where the merits are finely balanced, additional factors can materially help with a decision maker’s assessment. Knowing that cases of the same type in the same court only fully succeed in a small percentage of concluded cases helps them understand that outside of the merits, cases such as this are an uphill battle to persuade the court. Similarly, knowing your opponent is a serial litigator but tends to settle pre-trial is helpful knowledge when considering strategy.

To illustrate this, consider presenting to a board or senior executive. Compare how it would be presented along the following lines: the first is without data and the second is with data:

‘Our legal assessment of this case is that the merits are strong and justify the commencement of a legal claim at this time. We anticipate the case will take 18 to 24 months to conclude.’

Or…

‘Our legal assessment of this case is that the merits are strong and we recommend commencing legal proceedings. However, the board should be aware of three factors of relevance to this case:

• Cases of this type (contractual interpretation claims seeking damages) in the Commercial Court are currently taking (on average) 27 months to a first instance decision.
• Cases of this type generally only succeed in full 34% of the time, succeed in part 24% of the time and fail 42% of the time.
• The defendant is an experienced litigator and is currently involved in 75 live cases of which it is defendant in 70%. To date, the defendant has settled 100% of their disputes before trial.

I would suggest that the second wording is not only of significantly more use to a decision maker than the first but is likely to lead to a better informed and defendable decision.

Now that Solomonic litigation analytics are available to my organisation, they have become a core part of the litigation assessment and I can’t imagine not including data as part of our decision-making process.